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TOHICKON VALLEY TRANSFER v. TINICUM TOWNSHIP ZONING HEARING BOARD. TOHICKON VALLEY TRANSFER (05/15/86)

decided: May 15, 1986.

TOHICKON VALLEY TRANSFER, INC., THOMAS L. TREADWAY, SHIRLEY A. LOJESKI
v.
TINICUM TOWNSHIP ZONING HEARING BOARD. TOHICKON VALLEY TRANSFER, INC., THOMAS L. TREADWAY AND SHIRLEY LOJESKI, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Bucks County, in case of Tri-State Transfer Co., Inc. and Tohickon Valley Transfer, Inc., Thomas L. Treadway and Shirley A. Lojeski v. Tinicum Township Zoning Hearing Board, No. 83-6869-14-5.

COUNSEL

John R. Crayton, McCarthy and Crayton, for appellants.

James M. Neill, with him, George M. Bush, Hartzel and Bush, for appellee.

President Judge Crumlish, Jr., Judges Rogers, Craig, MacPhail, Doyle, Barry and Colins. Opinion by Judge Craig. Judge Colins concurs in the result only.

Author: Craig

[ 97 Pa. Commw. Page 246]

This zoning case presents an interrelated series of issues concerning a proposal to construct a trash transfer station on a site within the Planned Industrial District of Tinicum Township.

If an earlier zoning hearing board decision approving a permit in 1973 did not confer a vested right upon the present applicant, then this court must decide whether a trash transfer station now qualifies as a permitted use under the zoning ordinance provisions allowing junkyards and truck terminals in the industrial district.

If the use is not permitted in this township, then we must consider whether such an exclusion of trash transfer stations is justified by the county's solid waste management plan or any other consideration.

Finally, an overriding question is whether the township's floodplain regulations bar the existence of such a facility from the particular site here involved.

This appeal comes from an order of the Bucks County Court of Common Pleas which affirmed a 1983 decision of the township's zoning hearing board rejecting the application of Tri-State Transfer Co., Inc., present owner of the site, for approval of the trash transfer station. Tri-State relied, alternatively, upon claims of compliance with the ordinance and claims as to its invalidity.

[ 97 Pa. Commw. Page 247]

The 17-acre site is located between Route 611 and Tohickon Creek. Transfer Removal and Specialty Hauling, Inc. (T.R.A.S.H.) had appealed to the zoning hearing board in 1973 from a denial of a permit for a trash transfer station and had then obtained from the board a conditional approval and the issuance of a one-year permit, which, after renewals, expired finally in 1981. In 1982, intervenor Tohickon Valley Transfer, Inc., which had acquired the site from T.R.A.S.H., sold it to Tri-State for $400,000 and took back a purchase money mortgage. Tri-State, pursuing essentially the same site plan as that which T.R.A.S.H. had presented in 1973, applied for approval in 1983 and appealed to the zoning hearing board when the zoning administrator refused a permit. Between 1973 and 1983, neither T.R.A.S.H. nor its successors have taken any steps toward constructing the facility, which is to include a building.

The trial court took no additional evidence beyond that which the zoning hearing board had received. As the trial judge correctly noted, the proper scope of judicial review is therefore confined to determining whether the zoning hearing board abused its discretion or committed an error of law. Rothrock v. Zoning Hearing Board of Whitehall Township, 13 Pa. Commonwealth Ct. 440, 319 A.2d 432 (1972).

The intervenor mortgagee, Tohickon, is now the active party pursuing the appeal; the appellee township has not challenged its standing to do so.

Effect of the 1973 Zoning Approval and Permit

The initial question is whether the present owner and mortgagee can rest their case for proceeding with the trash transfer station upon the 1973 decision of the zoning hearing board and the successive permit renewals pursuant to it. The 1973 board decision found the use to be "reasonably consistent" with the permitted

[ 97 Pa. Commw. Page 248]

    uses as then stated. However, during the intervening decade, Tinicum Township modified its zoning ordinance -- including the industrial district provisions -- and also adopted floodplain regulations pursuant to the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202, and the Flood Plain Management Act, Act of October 4, 1978, P.L. 851, §§ 101-601, 32 P.S. §§ 679.101-679.601.

Whether the vested rights claim of the present owner be regarded as an entitlement legally surviving the revocation of a valid permit, Klein Appeal, 395 Pa. 157, 149 A.2d 114 (1959), or as a claim based upon an invalidity issued permit, Petrosky v. Zoning Hearing Board of Upper Chichester Township, 485 Pa. 501, 402 A.2d 1385 (1979), the determinative question is whether the applicant ever expended substantial funds in reliance upon the permit.

The record readily answers that question. Because the earlier approved permit, as renewed, expired finally in 1981, before either the present owner or mortgagee acquired any interest, the facts show no expenditure made on the basis of that permit, whether it be regarded as validly or invalidity issued. Tri-State acquired no title until 1982, and Tohickon, which sold to Tri-State, identifies its commitment as consisting only of the sale to Tri-State, financed through a 100% purchase money mortgage. The trial judge correctly decided that Tohickon cannot thereby claim to have made any expenditure toward establishing a use in reliance upon a permit. Acceptance of a purchase money mortgage is not remotely equivalent to such an expenditure because, by its very nature, the mortgage insures that Tohickon will recover either its purchase price or the real estate itself.

[ 97 Pa. Commw. Page 249]

    proceeds expressly to mention "salvage" and "sale," although it does so disjunctively in relation to "other . . . disposition."

However, municipal ordinances are not limited to ordinary connotations but may embody their own dictionary by the use of definitions like the ones stated above. Although the courts will give undefined terms in a zoning ordinance their common or everyday meaning, Kuhn v. Hanover General Hospital, 34 Pa. Commonwealth Ct. 207, 382 A.2d 1305 (1978), enactment of a specific definition in the ordinance produces a different effect because

     the legislative body may furnish its own definitions of words or phrases in order to guide and direct judicial determinations of the intendments of legislation, and such definitions may be different from ordinary usage. Sterling v. Philadelphia, 378 Pa. 538, 106 A.2d 793 (1954). . . .

Klein v. Township of Lower Macungie, 39 Pa. Commonwealth Ct. 81, 86, 395 A.2d 609, 611 (1978).

The trial judge concluded that a trash transfer station did not fall within this definition, noting that the ordinance listed "those materials which a junkyard may contain" and omitted any mention of garbage, i.e., discarded food. However, although the definition does expressly refer to dry or inorganic refuse materials -- "waste paper, rags, metal, building materials, house furnishings, machinery, vehicles or parts thereof" -- the ordinance also plainly states that its allowance of the storage of discarded materials is not limited to those materials. Recognizing that the list thus is not all-inclusive, the trial judge nevertheless decided that "trash" cannot be considered one of the materials that the governing body intended to allow; he ruled organic material out of the definition by considering that:

[ 97 Pa. Commw. Page 251]

The discarded food and its liquid could seep into the ground, attract insects, rats and vermin, and create various other nuisances which the dry materials listed would not create. . . . The storage or processing of discarded food create health hazards which the storage or processing of the materials listed in the ordinance would not create.

However, there is no ambiguity in the definition which requires speculation about legislative intent. The literal terms, relating to the storage and disposition of discarded materials, embrace refuse of all kinds because discarded materials and refuse are synonymous. Thus, the ...


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