Appeal from the Order of the Court of Common Pleas of Northumberland County, in case of Keystone Sportsmen Association of Lycoming County, Inc. v. The Zoning Hearing Board of Delaware Township v. Dick Witmer, President, D.W. Landfill, Inc., No. CV-83-1439.
Robert P. Wilkison, with him, John A. Carpenter, Carpenter, Diehl & Kivko, for appellant.
Robert E. Benion, for appellee, Zoning Hearing Board of Delaware Township.
Joseph P. Dougher, Dilworth, Paxson, Kalish & Kauffman, for appellee, Dick Witmer, President of D.W. Landfill, Inc.
Judges Craig and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Judge Palladino dissents.
[ 100 Pa. Commw. Page 385]
Keystone Sportsmen Association of Lycoming County, Inc. (Keystone) appeals from an order of the Court of Common Pleas of Northumberland County which dismissed its appeal and affirmed the decision of the Delaware Township Zoning Hearing Board (Board) which granted a variance to D.W. Landfill, Inc. from the setback requirements of section 427K(3) of the Delaware Township Zoning Ordinance (Ordinance). We reverse.
In 1972, Dick Witmer, who is President of D.W. Landfill, Inc., purchased a 130 to 140 acre tract of land in Delaware Township, which is divided by Township Road 655. He proposes to construct a landfill on the portion of the property located to the east of the Township Road. That portion of the property is approximately
[ 100 Pa. Commw. Page 3862]
,757 feet in length and 629 feet in width. Witmer also owns the adjoining property to the south. Keystone owns the adjoining property to the east of the proposed landfill site. This area of Delaware Township is designated as an Agricultural Holding District. Under the Delaware Township Zoning Ordinance, a sanitary landfill is allowed as a conditional use in the Agricultural Holding District, subject to certain conditions. Section 427K(3) of the Ordinance requires a two hundred foot setback from any street or property line. The plans for the proposed landfill complied with this requirement on the north and south sides, but only allowed for a twenty-five foot setback on the eastern boundary, and a fifty foot setback on the western boundary.
D. W. Landfill applied for a variance from the two hundred foot setback requirement. Following a hearing, the Board granted a variance. Keystone appealed, and the trial court remanded the matter to the Board for a full and complete hearing. Again, the Board granted D. W. Landfill a variance from the setback requirement.
The Board found that because of the narrowness of the tract, it would be economically infeasible to operate a landfill with two hundred foot setbacks on all sides. The Board further found that D. W. Landfill did not create the narrowness of the tract of land, and that a reduction of the two hundred foot setback to fifty feet on the western side would not alter the character of the neighborhood, would not be detrimental to public welfare, and would not impair the use or development of adjacent property. Additionally, the Board found that a fifty foot setback on the western side of the site was the minimum variance which would afford relief. However, the Board determined that the twenty-five ...