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LOWER MOUNT BETHEL TOWNSHIP v. STABLER DEVELOPMENT COMPANY ET AL. (05/12/86)

decided: May 12, 1986.

LOWER MOUNT BETHEL TOWNSHIP, APPELLANT
v.
STABLER DEVELOPMENT COMPANY ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Northampton County, in case of Lower Mount Bethel Township v. Stabler Development Company, and Eastern Industries, Inc., No. 1984-CE-5258.

COUNSEL

Robert J. Sugarman, with him, Cynthia L. Estlund, Sugarman & Hellegers, and Christopher T. Spadoni, for appellant.

Herbert Fishbone, Fishbone, Refowich and Scheer, with him, Frank A. Sinon, Rhoads & Sinon, for appellees.

Judges MacPhail and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 97 Pa. Commw. Page 196]

This is a zoning appeal wherein Lower Mount Bethel Township (Township), Appellant, appeals here an order of the Court of Common Pleas of Northampton County. That order denied the Township's request for an injunction to prevent the Appellees, Stabler Development Company (Stabler) and Eastern Industries, Inc., (Eastern), from quarrying sand and gravel, in violation of the Township's zoning ordinance, on a forty acre tract of land owned by Stabler in the Township. We reverse.

The factual background of this case is somewhat complex. Stabler owns approximately eight hundred twenty-eight acres of land in the Township. This acreage is currently divided into two parcels, one of which borders on the Delaware River. The largest parcel, containing nearly eight hundred acres, is located along the Delaware River east of U.S. Route 611, hereinafter referred to simply as the "easterly tract." The other parcel, containing approximately forty acres, is located west of Route 611 and is hereinafter referred to simply as the

[ 97 Pa. Commw. Page 197]

"westerly tract." The westerly tract is separated from the easterly tract by Route 611, a railroad right-of-way currently possessed by the Consolidated Rail Corporation (Conrail), and a twelve-acre parcel owned by Nebraska Consolidated Mills (Conagra). The Conrail right-of-way was conveyed to the railroad in 1916; the right-of-way for Route 611 was conveyed to the Commonwealth in 1929; and the Conagra parcel was conveyed to it in 1970 or 1971.

Stabler's predecessors in interest, Martin's Creek Portland Cement Company and Alpha Portland Cement Company (Alpha), have quarried the easterly tract for limestone and sand and gravel since 1899, except for a brief period from 1964 until 1970. The westerly tract was never quarried by Alpha although some studies were undertaken in the late 1960s as to sand and gravel reserves present in the westerly tract and some test bores drilled. When the Township enacted its present zoning ordinance in 1972, Alpha informed the Township that it did plan to quarry sand and gravel on the westerly tract sometime in the future, giving a 1987 to 1995 time frame, and requested that the tract be zoned to permit that operation. The ordinance was enacted by the Township and while the easterly tract was zoned to permit quarrying of the type that Alpha had undertaken, the westerly tract was zoned residential. Alpha did not take any further moves to secure zoning approval for quarrying on the westerly tract nor did it commence any preparatory work for quarrying on the westerly tract. The tract continued to be used for agricultural and residential purposes.

In 1980, eight years after the westerly tract had been zoned residential, Alpha filed an application with the Department of Environmental Resources (DER) to mine twenty-eight acres of the westerly tract. This application was subsequently withdrawn and refiled in

[ 97 Pa. Commw. Page 1981982]

as an amended application for mining on the easterly tract, which included the westerly tract as an integral part of the easterly tract. DER subsequently granted the permit.*fn1 In 1983, Stabler purchased all of Alpha's ...


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