Opinion
No. 2287 C.D. 2011
10-11-2013
In Re: Appeal of Gibraltar Rock, Inc. From the Decision of the New Hanover Township Zoning Hearing Board, Dated June 18, 2007 Appeal of: Gibraltar Rock, Inc.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Gibraltar Rock, Inc. (Gibraltar) appeals the order of the Court of Common Pleas of Montgomery County (common pleas court) that denied in part and granted in part Gibraltar's appeal from a decision of the New Hanover Township Zoning Hearing Board (Board). The common pleas court affirmed the Board's determination that the New Hanover Township Zoning Ordinance (Zoning Ordinance) did not operate to unconstitutionally exclude quarrying on both a de facto and de jure basis.
The common pleas court affirmed in part the Board's grant of a special exception for quarrying and reversed in part. The common pleas court affirmed the Board's imposition of a condition that Gibraltar provide berms and screening around the perimeter of the quarry prior to commencement of general quarrying operations.
The common pleas court reversed the imposition of numerous other conditions for the Special Exception. The common pleas court denied Gibraltar's legal challenge to the validity of the conditions imposed on Gibraltar under Section 22-835 of New Hanover Township's (Township) Subdivision and Land Development Ordinance (SALDO) which required a donation of land for park and recreation purposes or the donation of a fee in lieu of dedication of park and recreation land.
Facts
On March 23, 2001, Gibraltar purchased approximately 163 acres of land in the Township. Gibraltar is a member of the Silvi Group which owns ready mix concrete plants and sand and gravel operations in Pennsylvania and New Jersey. On March 23, 2001, Gibraltar filed an Application in which it challenged the substantive validity of the Zoning Ordinance on the basis that there was a de jure and de facto exclusion of quarrying in the Township. It claimed that, because the Zoning Ordinance was unconstitutional, it was entitled to "site-specific relief" to quarry the land it owned in both the LI-Light Industrial and HI-Heavy Industrial Zoning Districts. Gibraltar also challenged the substantive validity of the Zoning Ordinance on the basis that it failed to provide for the "reasonable development of minerals" in accordance with the Municipalities Planning Code (MPC). In the alternative, Gibraltar sought a special exception to operate a quarry on that portion of its land zoned HI-Heavy Industrial. Gibraltar also challenged the validity of Section 22-835 of the SALDO which it contends required a donation of 80 acres of land for park and recreation purposes or the donation of a "fee in lieu of" dedication of park and recreation land of $6,000,000.
When a provision of a zoning ordinance is found to be constitutionally infirm the challenger is entitled to a grant of "site-specific" zoning relief. Casey v. Zoning Hearing Board of Warrick Township, 459 Pa. 219, 328 A.2d 464 (1974).
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202. Section 603(i) of the MPC, 52 P.S. §10603(i), providing for the "reasonable development of minerals," was added by the Act of June 23, 2000, P.L. 495.
It is unclear from the Briefs how the parks and recreation "fee-in-lieu of" matter was initially raised. It does not appear that the Township assessed or demanded that Gibraltar pay a fee or dedicate land for a park or recreation area. The Hearing Officer's Decision spoke in terms of "traffic impact fees," stating that "traffic impact fees are required unless specifically waived by the Board of Supervisors." Hearing Offier's Decsiion, April 2, 2001, at 2; R.R. at 9a.
From what this Court discerns from the record, the parks and recreation "feeinlieu of" matter was first raised in Gibraltar's opening statement to the Board. Gibraltar then presented the testimony of its Planner, Kenneth Amey (Amey), who opined how such fees were calculated. He further opined that the requirement stated in Section 22835 of the Township's SALDO for the dedication of park and recreational land, or in lieu thereof, a fee, was invalid because there was no "reasonable relationship" between the fee and the "future residents" or ultimate users of the quarry. Notes of Testimony, March 5, 2003, (N.T. 3/5/03), at 8191; R.R. at 627a629a. The Board went on to conclude that it did not have jurisdiction to address the validity of the SALDO, and that jurisdiction was with the Township Board of Supervisors. The common pleas court: (1) concluded that the Board did have jurisdiction to address the issue; and (2) rejected Gibraltar's challenge to Section 22835 of the SALDO.
According to Gibraltar, after the hearings were concluded, Gibraltar filed a land development plan and the Township adjusted the amount of the "in lieu fees" downward to $2,183,375.00.
Gibraltar subsequently increased its land holdings to a total of 223 acres. The property was located partially in a LI-Light Industrial Zoning District and partially in a HI-Heavy Industrial Zoning District. Gibraltar sought to develop the south side of its property for a quarry, an aggregate processing facility, aggregate stockpiles, an office/scale house, a storage and parking area for machinery, an employee parking area, a loading area, a hot mix asphalt plant, a ready mix concrete plant and stormwater management facilities. The north side of the property would have a quarry, a primary crusher, and an employee parking area. No processing equipment, other than the primary crusher, would be located on the north side of Hoffmansville Road. Gibraltar proposed to construct a conveyor system under Hoffmansville Road to convey material mined north of the road to the processing facility on the south. Earthen berms would surround the perimeter of the site as well as driveways to provide access to the site. If mining was restricted to the HI District, mining could only occur on the south side of Hoffmansville Road. Gibraltar developed a reclamation plan for the quarry site to be a water reservoir at the end of its useful life. Notes of Testimony, June 27, 2001, at 51; R.R. at 183a.
Following sixty-seven public hearings, the Board issued a written decision on June 18, 2007, which denied Gibraltar's substantive challenges to the Zoning Ordinance but granted a Special Exception to permit quarrying on the portion of the property located in the HI District subject to certain conditions. The Township's expert, Thomas Comitta (Comitta), a certified planner and landscape architect, testified that the "H-12 Extractive Operations" Use is permitted in the HI District by Special Exception. He also testified that the Zoning Ordinance provided for the reasonable development of minerals in the Township. The Board found Comitta to be credible.
The Board also found credible the testimony of Township expert witnesses, David P. Gold, Ph.D. (Dr. Gold), an Emeritus Professor of Geology at Penn State University and Economic Geologist, and Arthur W. Rose, Ph.D. (Dr. Rose), an Emeritus Professor of Geochemistry at Penn State University and Consulting Geologist, as it related to the rate of production, selling rate of stone, capital expenditures, and acquisition of land. Dr. Gold and Dr. Rose concluded that development of an economically viable quarry was possible in the HI Districts of the Township.
The Board did not find credible Gibraltar witness, Lyn Kemper, who estimated the cost of a crushing system, blacktop plant, and ready mix concrete plant. The Board also did not find credible the testimony of Gibraltar witness, Alan K. Stagg (Stagg), because he relied on information provided by the chief financial officer of Silvi Group who did not testify. Gibraltar witness Dr. John R. Richards was found credible with respect to emission controls and emission factors for the proposed quarry. The Board did not accept the testimony of Amey who opined that the Zoning Ordinance unconstitutionally excluded quarrying. Numerous neighboring residents testified in opposition to the proposal.
The Board granted Gibraltar the Special Exception to quarry that portion of its property in the HI District subject to numerous conditions including the requirement that Gibraltar construct "berms and screening around the perimeter of the quarry in place prior to commencement of general quarrying operations." Board's Decision and Order, June 8, 2007, ¶5(g) at 42. The Board found that Gibraltar's challenge to the validity of the Township's "fee-in-lieu of" dedication of parks and recreational land, Section 22-835 of the Township's SALDO, "should be to the Board of Supervisors, not the Zoning Hearing Board." Board's Decision and Order, June 8, 2007, Conclusion of Law No. 13, at 37. It held that it did "not have the jurisdiction to determine the validity of Applicant's [Gibraltar's] challenge to Section 22-835 of the New Hanover Township Subdivision and Land Development Ordinance, and that such an appeal should be before the Township Board of Supervisors." Board's Decision and Order, June 8, 2007, ¶4 at 41. The Board determined that there was neither a de jure nor de facto exclusion of the reasonable development of minerals in the Township.
Gibraltar appealed to the common pleas court. The common pleas court affirmed that there were no valid de jure and de facto challenges and upheld the conditions concerning berms and screening. The common pleas court struck other conditions challenged by Gibraltar which are not before this Court. The common pleas court agreed with Gibraltar that the Board erred when it found it lacked jurisdiction to rule on the challenge to the SALDO but did not accept Gibraltar's challenge that the requirement for the donation of land for parks and recreation lacked a reasonable relationship to the use of the park and recreational facilities by the future inhabitants of the development or subdivision in question.
The common pleas court found that it was appropriate for Gibraltar to submit its substantive challenge to either the Board or the Board of Supervisors under Section 916.1 of the MPC, 53 P.S. §10916.1 (added by the Act of December 21, 1988, P.L. 1329, No. 170). Section 916.1 of the MPC, 53 P.S. §10916.1 provides, in part: "A landowner who, on substantive grounds, desires to challenge the validity of an ordinance...shall submit the challenge either: (1) to the zoning hearing board under Section 909.1(a); or (2) to the governing body under section 909.1(b)(4)..." In the interests of judicial economy, the common pleas court examined Gibraltar's challenge, rather than remand the single issue.
On appeal, Gibraltar raises the following issues: (1) whether the common pleas court abused its discretion and committed an error of law when it affirmed the Board and denied Gibraltar's de jure challenge to the Zoning Ordinance; (2) whether the common pleas court abused its discretion and committed an error of law when it affirmed the Board and denied Gibraltar's de facto challenge to the Zoning Ordinance; (3) whether the common pleas court abused its discretion and committed an error of law when it affirmed the condition imposed by the Board that Gibraltar construct berms and screening around the perimeter of the quarry prior to the commencement of general quarrying operations; and (4) whether the common pleas court abused its discretion and committed an error of law when it concluded Gibraltar was required to dedicate land for park and recreation purposes or pay a fee in lieu thereof under Section 22-835 of the Township's SALDO?
In a controversy such as this, where the common pleas court takes no additional evidence, the standard of review of this Court is limited to determining whether the Board committed a manifest abuse of discretion or an error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). The Board abuses its discretion if its findings are not supported by substantial evidence. McClimans v. Board of Supervisors of Shenango Township, 529 A.2d 562 (Pa. Cmwlth. 1987). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
The Board, as fact finder, is the ultimate judge of credibility and resolves all conflicts of evidence. Constantino v. Zoning Hearing Board of Forest Hills, 618 A.2d 1193 (Pa. Cmwlth. 1992). This Court may not engage in fact finding or disturb the Board's credibility determinations. Id.
I.
In its first issue, Gibraltar contends that the common pleas court abused its discretion and committed an error of law when it affirmed the Board's denial of Gibraltar's de jure challenge to the Zoning Ordinance. Gibraltar argues that quarrying is a legitimate and non-objectionable use of the land. It argues that because the Township totally excluded this otherwise legitimate use, it is entitled to site-specific relief. It contends that it received a Mining Permit from the Department of Environmental Protection (DEP) which was extremely detailed such that operation within the statutory and regulatory parameters set forth in the permit would not be detrimental to the public health, safety, and welfare. Gibraltar argues that the Zoning Ordinance is defective because it excludes a legitimate use. It points to the testimony of Amey who testified that the Zoning Ordinance excluded quarrying at the time Gibraltar filed its application. Gibraltar asserts that the 1997 codification to the Zoning Ordinance did not permit H-12 Extractive Operations anywhere in the Township and that Section 27-302.4 of the Zoning Ordinance specifically states, "A use not listed in Parts 4 through 11, as noted above, is not permitted in the specific zoning district."
The DEP Permit was conditioned upon Gibraltar obtaining a zoning approval from the Township. The Permit required Gibraltar, among other things, to obtain an Air Quality Permit, a PennDOT Highway Occupancy Permit, to meet all air quality standards, to fence the quarry in accordance with the Zoning Ordinance, to prevent dirt, mud, or dust from the quarry to be tracked onto the surrounding roads, to preserve prime farmland, to assure erosion and sedimentation control facilities are in place, to limit its excavation to 220 feet above sea level, to monitor and address potential impacts on surrounding wells and ground water, to address slope stability and to perform ground frequency testing prior to blasting.
A zoning ordinance enjoys a presumption of constitutionality and validity unless the challenging party shows it is unreasonable, arbitrary or not substantially related to the police power that the ordinance purports to serve. Hanson Aggregates Pennsylvania, Inc. v. College Township Council, 911 A.2d 592 (Pa. Cmwlth. 2006). To overcome the presumption of constitutionality, the challenger has a heavy burden to demonstrate the ordinance totally excludes an otherwise legitimate use. Id. "Uncertainties in the interpretation of an ordinance are to be resolved in favor of a construction which renders the ordinance constitutional." Upper Salford Township v. Collins, 542 Pa. 608, 610, 669 A.2d 335, 336 (1995).
De jure exclusion only exists where an ordinance, on its face, totally bans a legitimate use. The fact that a zoning ordinance does not contain a specific provision addressing a proposed use is not, in and of itself, a basis for finding an unconstitutional exclusion of that use. Kratzer v. Board of Supervisors of Fermanagh Township, 611 A.2d 809 (Pa. Cmwlth. 1992). Where an ordinance does not mention a specific use, the court must determine whether the proposed use is included within another use specifically provided for. Id. When a proposed use may be considered within another zoning classification or, where a zoning ordinance is broad enough to encompass the proposed use, there is no de jure exclusion. Id.
The issue of whether a proposed use falls within a given category of permitted use in a zoning ordinance is a question of law, subject to this Court's review. H.E. Rohrer, Inc. v. Zoning Hearing Board of Jackson Township, 808 A.2d 1014 (Pa. Cmwlth. 2002). In considering this issue, the ordinance is to be construed expansively, affording the landowner the broadest possible use and enjoyment of his land. Id. On the other hand, the Board is entitled to considerable deference in interpreting its zoning ordinance. Montgomery Crossing Assocs. v. Township of Lower Gwynedd, 758 A.2d 285 (Pa. Cmwlth. 2000).
If the challenger overcomes the presumed constitutionality of the ordinance then the municipality must show that it has "salvaged the ordinance by presenting evidence to show that the exclusionary regulation bears a substantial relationship to the public health, safety, morality or welfare." Interstate Outdoor Advertising, L.P. v. Zoning Hearing Board of Warrington Township, 39 A.3d 1019, 1025 (Pa. Cmwlth. 2012).
Here, Hank Clemmer (Clemmer), who was employed as the Code Enforcement Officer of New Hanover Township when the Application was filed, testified that the 1990 Zoning Ordinance permitted H-12 Extractive Use in the HI District by Special Exception. He explained that the entire body of the Zoning Ordinance was codified in 1997. He explained that the 1997 codification contained numerous errors, including the omission of several uses in certain districts, and failure to incorporate new zoning districts into the Zoning Ordinance. Notes of Testimony, June 2, 2003, (N.T. 6/2/03) at 50-52; Reproduced Record (R.R.) at 694a. Clemmer explained that extractive uses were "unintentionally" omitted from the 1997 Zoning Ordinance under the text portion of the HI regulations, but were still contained within a chart contained in the Zoning Ordinance. He testified that there was no clear intent to omit or delete extractive uses from the Zoning Ordinance. N.T. 6/2/03, at 55; R.R. at 695a. When he reviewed the Application, he treated it as though a quarry was permitted by Special Exception. Id. Clemmer also pointed out that Section 305 of the 1997 Zoning Ordinance which was in effect when the Application was filed, contains three-and-a-half pages of performance standards for H-12 Extractive Operation Use. N.T. 6/2/03 at 71; R.R. at 699a.
Corroborating testimony was provided by the Township's expert witness, Comitta, who explained that there was a notation in the Table of Use Regulations, Section 307 of the Zoning Ordinance, that Use H-12 is permitted as a Special Exception in the HI District and that special regulations applicable to Use H-12 Extractive Operations are set forth in Section 2107.4FF. These regulations require the applicant to perform water impact and traffic studies and to insure that all requirements of Section 305(8)(M) of the Zoning Ordinance are met. Comitta testified that the H-12 Extractive Use was permitted in the HI District by Special Exception at the time the Application was filed and it was not intentionally omitted when the Zoning Ordinance was codified. Notes of Testimony, June 17, 2003, (N.T. 7/17/03) at 97, 100; R.R. at 727a-728a.
In fact, Gibraltar's own witness, Amey, a Certified Land Planner, testified that the Ordinance in effect when Gibraltar filed its Application contained a Table of Use Regulations which identified "H-12 Extractive Operations" as permitted by Special Exception. Notes of Testimony, April 2, 2003 at 43-44; R.R. at 647a.
The Board found, based upon this substantial credible evidence that the Zoning Ordinance was not de jure exclusionary. The Board found that the Ordinance permitted quarries by Special Exception in the HI Zoning District. The Board's finding was supported by substantial evidence. Contrary to Gibraltar's assertions, the Zoning Ordinance did not, on its face, totally ban a quarry use throughout the Township. The Board properly found that the Zoning Ordinance provided for a quarry use by Special Exception in the HI Zoning District. As fact finder, the Board is the ultimate judge of credibility and resolves all conflicts of evidence. Constantino.
Gibraltar nevertheless contends on appeal that the Board's approval was "a ruse" to defeat Gibraltar's substantive challenge to the Zoning Ordinance. It contends that the record regarding the history of the Township's regulation of Extractive Operations established that quarrying was not allowed anywhere within the Township when Gibraltar filed its Application.
This Court rejects Gibraltar's contention that the Board's approval of the Special Exception was a "ruse." The Township's witnesses explained the inconsistencies in the Zoning Ordinance in the 1997 codification. The Board credited those witnesses and accepted their explanation that any apparent elimination of Extractive Operations from the HI District was an oversight.
A mere drafting oversight does not render an ordinance unconstitutional. Gibraltar is not entitled to site-specific relief to quarry all of its property regardless of the zoning district.
II.
Gibraltar next contends that the common pleas court abused its discretion and committed an error of law when it affirmed the Board's denial of its de facto challenge to the Zoning Ordinance. It claims the Zoning Ordinance is de facto exclusionary because it failed to provide for the reasonable extraction of minerals.
Section 603(i) of the MPC, 53 P.S. §10603(i), states that "zoning ordinances shall provide for the reasonable development of minerals in each municipality." Zoning Ordinances should consider the character of the municipality, the needs of its citizens and the suitability and special nature of the particular parts of the municipality. 53 P.S. §10603(a). In LaRock v. Board of Supervisors of Sugarloaf Township, 866 A.2d 1208 (Pa. Cmwlth. 2005), this Court held that the MPC requires a balance of interests to determine whether a zoning ordinance is reasonable. The Township must designate an area for mining which contains minerals which may be economically developed.
To meet its burden in a de facto challenge, a landowner must show the Ordinance's regulation of mining is unreasonable and bears no rational relationship to any legitimate zoning interest. Farley v. Zoning Hearing Board of Lower Merion, 636 A.2d 1232 (Pa. Cmwlth. 1994). When considering a validity challenge, the reasonableness of the ordinance as a whole is to be considered. Hanson Aggregates, 911 A.2d at 596.
In determining what is reasonable, the court must consider the special nature of various sites within the municipality, the special protection and preservation allowed for natural resources and agricultural land and that the ordinance shall be consistent with the municipal comprehensive plan. LaRock, 866 A.2d at 1213. It is also appropriate to consider the residential nature of the municipality, the impact of the proposed quarry on road and safety issues, the impact of the proposed quarry on the aesthetic and quality of life on surrounding areas, and the proximity of the quarry to historical structures. See Hanson Aggregates.
Gibraltar asserts that the area zoned for quarrying does not have "economically desirable" minerals in sufficient quantities to be reasonably developed. It contends that most of the area south of Hoffmansville Road has beneath it rock which is not commercial-grade and that the commercially desirable rock is at a depth which cannot be economically mined. Under the Township's plan, only approximately 25% of the potentially saleable commercial stone would be recovered. Gibraltar points to Dr. Stagg's testimony that a mine cannot be developed in the HI District which would provide for the reasonable development of minerals. Gibraltar argues that the Township witnesses were inexperienced and made errors in their calculations and that the expert opinion from Dr. Stagg was the "only one based upon accurate, researched data." Gibraltar's Brief at 47.
Gibraltar's argument is nothing more than an attack on the credibility determinations of the Board. The Board found credible and assigned weight to the testimonies of Dr. Rose and Dr. Gold as it related to the rate of production, selling price of stone, capital expenditures and acquisition of land costs. The Board also credited the opinions of Joseph Casey, a Registered Professional Geologist, who undermined the basic geologic data and drilling data of Gibraltar's consultant, Walter Satterthwaite.
As an appellate court, this Court reviews for errors of law and abuses of discretion. It is not this Court's function to reevaluate the evidence or credit one witness over the other. This Court has reviewed Gibraltar's' arguments and reviewed the testimony. The Court does not conclude that the testimonies of Dr. Rose and Dr. Gold were inaccurate so that, by crediting them, the Board or common pleas court committed an error of law or abuse of discretion. The subject matter was complex. It involved detailed charts, core boring tests, chemistry, geology, mining processes, rate of production data, selling prices of stone, and capital expenditures. In the end, the witnesses differed on whether the Township zoned a large enough area to make sufficient reserves available so that Gibraltar could economically quarry. Dr. Gold and Dr. Rose conducted petrographic analyses of rock samples and concluded that there were sufficient reserves of commercial grade rock in the HI District that could be economically developed.
Dr. Gold and Dr. Rose had impressive credentials and were distinguished and recognized experts. The Board could hardly be faulted for finding them credible. In fact, the Board did an excellent job of deciphering the scientific and economic evidence presented. It is evident from its Decision that the Board carefully and fairly considered all the competing experts' opinions and, in fact, credited some of Gibraltar's witnesses, including Dr. John R. Richards, an expert in emission factor testing and air quality analysis.
Gibraltar nevertheless complains that the Board had no basis to discredit Dr. Stagg's economic evaluation "because he relied on information provided by Silvi Group Chief Financial Officer, who did not testify under oath or submit to cross-examination." Board's Decision and Order, June 8, 2007, Finding of Fact No. 74 at 13. Gibraltar contends that the Township's witnesses also relied on this same type of evidence.
However, aside from Dr. Stagg's reliance on information outside the record, the Board clearly rejected his economic evaluation for other valid reasons. Dr. Gold and Dr. Rose precisely and methodically undermined many of the parameters used by Dr. Stagg in his economic evaluation including: rates of production, rates of return, selling price of stone, capital expenditures, financial evaluation and acquisition of land costs.
When substantial evidence supports the findings and the findings in turn support the conclusion, it remains a rare instance where an appellate court disturbs an adjudication based on capricious disregard. Hellam Township v. Hellam Township Zoning Hearing Board, 941 A.2d 746 (Pa. Cmwlth. 2008).
Here, the Board simply found Dr. Gold and Dr. Rose to be more credible and assigned more weight to their testimony. Contrary to Gibraltar's contention, this Court may not disregard these credibility determinations and credit Gibraltar's witnesses. Because the Board properly found based upon substantial credible evidence that the Zoning Ordinance provides for the reasonable development of minerals within the Township, its conclusion that the Zoning Ordinance is not de facto exclusionary was also correct.
III.
Next, Gibraltar contends that the common pleas court abused its discretion when it affirmed the Board's condition regarding berms and screening. The Board's Decision included the following condition: "The Applicant shall have the berms and screening around the perimeter of the quarry in place prior to the commencement of general quarrying operations." Board Decision and Order, June 8, 2007, ¶5(g) at 42. Gibraltar argues that the imposition of this condition prior to the commencement of quarrying operations is unnecessary for the enforcement of the Zoning Ordinance. It contends that the berms are constructed from soil and overburden that is removed to allow Gibraltar to reach the stone it intends to mine. It claims that the entire site is not stripped of soil and overburden at once. This happens incrementally and is not available before quarrying begins.
The term "overburden" refers to the materials removed once the quarrying process has begun.
Gibraltar does not point to support in the record for its position that the construction of berms and screening is only possible as the quarrying process takes place. Uday Patankar, Gibraltar's Vice President of Environmental and Public Affairs, testified that the construction of berms begins at the initial phase when the sediment basins (used to accept ground water and surface runoff) are constructed. Notes of Testimony, July 7, 2005, at 29-30; R.R. at 1031a.
Gibraltar further contends that the construction of berms was addressed in Condition 22 of its Noncoal Surface Mining Permit. Gibraltar contends that the conditions imposed by the Board constituted an abuse of discretion because it required berms to be installed prior to the commencement of quarry operations and because the condition is preempted by the Pennsylvania Noncoal Surface Mining Conservation and Reclamation Act (Noncoal Surface Mining Act), 52 P.S. §§3301-3326.
Condition 22 of the Mining Permit does not address the timing of the construction of the berm. It states: "A minimum horizontal distance of 15 feet (4.57 m) shall be maintained between the outside toe of any berm and the SMP [Surface Mining Permit] boundary in order to provide access to these sections of the berm" Noncoal Surface Mining Permit, April 15, 2005, at 3; R.R. at 1477a.
Act of December 19, 1984, P.L. 1093, as amended.
The appropriate standard to be applied by the Court when reviewing the reasonableness of conditions imposed by a Zoning Board upon a special exception was explained by this Court in Good v. Zoning Hearing Board of Heidelberg Township, 967 A.2d 421 (Pa. Cmwlth. 2009). "Conditions must be reasonable and must find support in the record warranting the imposition of such conditions; otherwise, the imposition of conditions constitutes an abuse of discretion." Good, 967 A.2d at 430-31. The "conditions imposed on the grant of a special exception should make the use more compatible with the surrounding zoning district." Id.
The Board found that the area surrounding the quarry includes eighteen historic sites, four schools, seven parks and four-hundred-thirty residences with more than one-thousand-five-hundred more residential units planned, all within a one-mile radius of the proposed quarry. The Board determined that construction of berms and screening prior to quarrying operations was appropriate and warranted to minimize the potential adverse visual and audible impacts a use as intense as a quarry has on the surrounding area.
The Board's imposition of this condition had support in the record. The quarry would use high explosives and enormous mobile machinery and powerful processing equipment characterized and limited to the Heavy Industrial Zoning District by the Zoning Ordinance. Gibraltar's own Planning expert, Amey, testified that visually shielding the impact of the quarry constitutes good land planning practice. N.T. 3/5/03 at 94-95; R.R. at 660a. According to Comitta, who was found credible by the Board, the area surrounding the quarry was transitional, growing from rural to suburban, and experiencing considerable residential, institutional, recreational, commercial and industrial development. Notes of Testimony, June 30, 2003, (N.T. 6/30/03), at 99; R.R. at 712a.
This Court is not convinced the conditions were unreasonable. The condition that berms and screening be in place prior to the commencement of general quarrying was supported by substantial evidence. Although the entire property may not be stripped at once, the noise and earth-moving would begin immediately. Visual and noise buffers are traditional methods of regulating land use.
In Warner Company v. Tredyffrin, 612 A.2d 578 (Pa. Cmwlth. 1992), this Court examined whether an amendment to the Tredyffrin Township Zoning Ordinance which regulated quarrying operations was preempted by the Noncoal Surface Mining Act. The Ordinance included setback requirements, and regulations concerning buffers, the height of berms, reclamation, storage of overburden, and drainage structures. This Court held that the provisions relating to setback requirements and permitting quarrying by special exception were not preempted by the Noncoal Surface Mining Act. However, provisions which attempted to regulate mining activities were preempted, including the provisions which set forth height requirements for berms.
Unlike in Warner, Gibraltar has not demonstrated that requiring that the berm be constructed before the quarrying begins conflicts with any state or federal regulation of quarrying. The condition imposed by the Board does not attempt to regulate the height or location of berms. Rather, it simply requires that the berms be installed prior to the commencement of quarrying operations. This Court is not convinced that the "timing" of the construction of the berms is regulated as part of the quarrying operation itself.
The Permit issued by the DEP on April 15, 2005, requires Gibraltar to comply with "all local ordinances." Exhibit "A-98"; R.R. at 1476a. The Permit specifically provides: "this permit shall not be construed to sanction any act otherwise forbidden by federal or state law or regulation, or by local ordinance, nor to preempt any duty to obtain state or local assent required by law for the noncoal mining activity." Exhibit "A-98"; R.R. at 1476a.
As the Township points out in its Brief, the condition at issue was properly imposed by the Board pursuant to the requirements of the Zoning Ordinance and the MPC to minimize the impact of quarrying activities upon surrounding properties. The condition that berms and screening be in place was not an attempt to regulate mining activities. While an attempt to regulate the "location" or "height" of the berm may be regulated, the condition which simply requires that the berms and screening be installed prior to the commencement of the quarrying activities is not.
The Board's imposition of the condition to enforce the Zoning Ordinance's goals was wholly appropriate and fell within the ambit of the Permit which required Gibraltar to comply with all local ordinances adopted pursuant to the MPC.
IV.
The next issue involves the validity of Section 22-835.3.B of the Township's SALDO and the Township's authority to condition the approval of Gibraltar's development on Gibraltar's dedication of 80 acres of its land to the Township for recreation purposes within the development, or, payment of a $2,183,375 "fee in lieu of land." Gibraltar challenges the validity of the SALDO's dedication of recreation or park land or fee as a condition of its approval.
Section 22-835 provides, in pertinent part:
Standards for Park and Recreation Areas; Fee in Lieu of Dedication
1. General Provisions.
A. All applicants, excepting only those seeking approval of a subdivision which would consist of two or less single family residential units, which shall submit and tender to the Township a fixed fee of $500 for each of the two single family residential units, shall, concurrent with the submission of a final plan of subdivision or land development, offer for dedication a portion of the land being subdivided or developed, as hereinafter set forth, as public recreation area. (Emphasis added)
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D. All areas dedicated under the provisions of this Section shall be consistent with the specific goals, objectives, plans and recommendations of the Township Comprehensive Plan and the Township Open Space, Parks and/or Recreation Plan and are to be in accordance
with the definite principles and standards contained in this Chapter.
E. In lieu of land dedicated for recreation purposes, a fee may be paid, as hereinafter set forth in §22-835(3).
F. The amount and location of land to be dedicated or the fees to be paid shall bear a reasonable relationship to the use of the park and recreation facilities by future residents, occupants, employees or visitors to the subdivision or land development. (Emphasis added)
2. Standards for Land Dedication.
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N. A minimum of .0124 acres of land shall be offered for dedication in fee simple title for each residential lot, dwelling unit or combination thereof...and a minimum of .01 acres of land shall be offered for dedication for each 1,000 square feet of building, structure or improvement proposed for any nonresidential land development plan.
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3. Standards for Fee in Lieu of Land Dedication.
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B. The applicant shall tender to the Township prior to or concurrent with final plan approval a fee in lieu of dedication calculated in an amount equal to $75,000 per acre if the plan is situate in the HI-Heavy Industrial; LI-Light Industrial; CB-Commercial Business or CB-2 Commercial Districts; $55,000 per acre if the plan is situate in the R-15 Residential 15 or R-25 Residential 25 Zoning Districts; or $35,000 per acre if the plan is situate in the R-50 Residential 50 or R-2 Residential 2 Zoning Districts or in proportionate rate for any portion thereof, as hereinbefore required to be dedicated in fee simple title or an amount equal to 1/3 the value hereinbefore assigned per acre, or any portion thereof, in each Zoning District, as hereinbefore required to be subject to a grant of right-of-way or easement with regard to each such subdivision or land development.
C. All fees paid in lieu of land dedication shall be used for:New Hanover Township Subdivision and Land Development Ordinance, Chapter 22, Part 8, §22-835, 3/29/1990B, as added by Ord. 97-4, 8/11/1997.
(1) The acquisition of land for parks, recreation areas, facilities, open space and trails and bikeways as component additions to the New Hanover Township system.
(2) The construction of improvements on such land.
(3) Costs incidental to such purposes including, but not limited to, planning, engineering, design, administrative and legal fees, utility relocation or installation, construction of sewage or water facilities, vehicular and pedestrian access, signage and the purchase of park equipment and maintenance.
In Pennsylvania, local governments may impose conditions (a/k/a "exactions") on development and subdivision approval which include the dedication of park and recreation areas or "fees in lieu of land." The legislature's express grant of authority to municipalities to require land dedications and/or "fees in lieu of" is found in Section 503(11) of the MPC (Contents of subdivision and land development ordinance), 53 P.S. §10503(11):
The subdivision and land development ordinance may include, but need not be limited to:
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(11) Provisions requiring the public dedication of land suitable for the use intended; and, upon agreement with the applicant or developer, the construction of recreational facilities, the payment of fees in lieu thereof, the private reservation of land, or a combination, for park or recreation purposes as a condition precedent to final plan approval, provided that: (Emphasis added)
(i) The provisions of this paragraph shall not apply to any plan application, whether preliminary or final, pending at the time of enactment of such provisions.53 P.S. §10503(11)(i)-(v).
(ii) The ordinance includes definite standards for determining the proportion of a development to be dedicated and the amount of any fee to be paid in lieu thereof. (Emphasis added)
(iii) The land or fees, or combination thereof, are to be used only for the purpose of providing park or recreational facilities accessible to the development. (Emphasis added).
(iv) The governing body has formally adopted a recreation plan, and the park and recreational facilities are in accordance with definite principles and standards contained in the subdivision and land development ordinance. (Emphasis added)
(v) The amount and location of land to be dedicated or the fees to be paid shall bear a reasonable relationship to the use of the park and recreational facilities by future inhabitants of the development or subdivision. (Emphasis added).
Act 170 of 1988 revised and reenacted the MPC in part by specifically allowing municipalities to require dedication of land for park and recreation purposes.
According to the MPC, municipalities may require the dedication of land or fees for park and recreation purposes so long as they: (1) are used to provide park or recreational facilities accessible to the development ; and (2) bear a "reasonable relationship" to the use of the park and recreational facilities by future inhabitants of the development or subdivision (section 503(11)(v)).
Dedications for offsite improvements or for the general public without regard to the needs of the subdivision or development have been found to be unlawful takings. Board of Sup'rs of West Marlborough Twp. v. Fiechter, 566 A.2d 370 (Pa. Cmwlth. 1989) (the requirement of dedication of 8.5 feet of road footage adjacent to subdivision was an invalid condition because there was no evidence that the need to widen the road was generated by the project). Gibraltar does not allege that whatever recreation facilities the township builds or funds will not be accessible to the inhabitants of its development. Rather, its position is grounded in the fact that its development will not result in an increase in the need for park and recreation facilities.
The rationale being that new residential subdivision increases the need for parks and playgrounds. Because some plats are unsuitable for use as parks or recreation areas, the MPC allows local governments to demand money in lieu of land.
Here, the salient question then is whether the Township's requirement that Gibraltar dedicate 80 acres of its land for park and recreation purposes or pay a fee of $2,183,375, bears a "reasonable relationship" to the use of such park and recreational facilities by future inhabitants of the proposed quarry.
Gibraltar argues that there is no "reasonable relationship" between the required contributions for development approval and the use of park and recreational facilities by "future inhabitants" of the quarry. It contends that a quarry has no "inhabitants," only employees. Even if the term "future inhabitants" was interpreted to include employees, Gibraltar convincingly argues that the dedication of 80 acres and/or $2,183,375 for the park and recreation needs of 18-20 employees, who come to the quarry in the morning and leave in the evening, bear no reasonable relationship to their park and recreation needs, if any.
As Gibraltar points out, the MPC is silent on whether mandatory dedication of land for park and recreation purposes may be imposed on non-residential developments. The MPC requires the land to be dedicated and/or the fees must bear a reasonable relationship to the use of the park and recreational facilities by future inhabitants of the development or subdivision. See Section 503(11)(v). It is unclear if the term "future inhabitants" encompasses "employees." There is no Pennsylvania case law on this point.
Arguably, dedication of park/recreation/open space land or fees only applies to residential subdivisions and not to commercial and industrial subdivisions, as the need for more recreational and open space is proportional to the number of residential subdivisions in the community. However, this Court need not answer that question because the issue in this appeal is not whether parks and recreational areas are always and necessarily a benefit to a commercial or industrial development; rather, the issue is whether this record supports a finding of a reasonable relationship between the Township's conditions of approval, i.e., the dedications, and the impacts caused by the development of the quarry.
No information was offered to support that the need for an additional 80 acres of park and recreation space or that $2,183,375 for parks and recreation would be generated by the development of the quarry. The quarry will not consume valuable community park and recreation land. The land was located in a heavy industrial zoning district and previously housed a medical waste incinerator. Further, no connection was shown between an industrial development which employs 18-20 individuals and those individuals' recreational needs. There was no evidence that the dedication of land or recreation fees was necessary to balance an impact created by the quarry's development.
Because the Township has not demonstrated any "reasonable relationship" to the use of the park and recreation facilities by the quarry's "future inhabitants," any requirement that Gibraltar dedicate land for parks and recreation or pay a "fee in lieu of" as a condition of approval of its industrial development is invalid. The common pleas court erred when it rejected Gibraltar's legal challenge to the conditions of approval imposed on it by the Township under Section 22-835.3.B of the SALDO.
In the alternative, Gibraltar contends that Section 22-835 of the SALDO is unconstitutional on its face because it was not adopted in accordance with the standards of the MPC, which requires that a municipality's SALDO contain "definite standards" for determining the amount and location of land required to be dedicated (section 503(11)(ii)). Specifically, Gibraltar contests the hierarchy of "in lieu of fees" for different types of uses, including the provision's allocation of higher fees to industrial developments even though one would expect that residents of a residential subdivision would make much more use of a park and recreation facility than the employee of an industrial or commercial facility. Gibraltar argues that the fee-per-acre appears to have been simply chosen as the Township's idea of what each type of development could financially bear as the Township presented no evidence to establish that its requirement to dedicate park and recreation land or pay a "fee in lieu of" reasonably relates to the use of park and recreation facilities by future inhabitants of the development in the various designated zoning districts. However, the record does not include the Township's Open Space, Parks and/or Recreation Plan. Therefore, this Court is unable to consider this issue. --------
Conclusion
For the foregoing reasons, the order of the common pleas court is affirmed, in part, and reversed, in part. To the extent that the common pleas court upheld the condition the Township imposed upon Gibraltar pursuant to Section 22-835.3.B of the SALDO, the Order is reversed. The remainder of the common pleas court's decision is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 11th day of October, 2013, the Order of the Court of Common Pleas of Montgomery County is affirmed, in part, and reversed, in part.
The Order is reversed with regard to the imposition of park and recreational fees under Section 22-835.3.B of the New Hanover Township Subdivision and Land Development Ordinance. New Hanover Township is not permitted to require any fee or donations of land from Gibraltar Rock, Inc. under Section 22-835.3.B of the Subdivision and Land Development Ordinance.
The remainder of the common pleas court's Order is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge