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APPEAL EUREKA STONE QUARRY (03/28/88)

decided: March 28, 1988.

APPEAL OF EUREKA STONE QUARRY, INC. FROM DECISION OF THE NEWTOWN AREA JOINT ZONING HEARING BOARD. APPEAL OF EUREKA STONE QUARRY, INC. FROM DECISION OF THE WRIGHTSTOWN TOWNSHIP ZONING HEARING BOARD. EUREKA STONE QUARRY, INC., APPELLANT


Appeal from the Order of the Court of Common Pleas of Bucks County, in case of Appeal of Eureka Stone Quarry, Inc. from decision of the Newtown Area Joint Zoning Hearing Board, No. 85-03939, and in the case of Appeal of Eureka Stone Quarry, Inc. from decision of the Wrightstown Township Zoning Hearing Board, No. 81-05875, dated September 2, 1986.

COUNSEL

John A. VanLuvanee, with him, John S. Skoutelas, Eastburn and Gray, for appellant.

Terry W. Clemons, Clemons and Klimpl, for appellee.

Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 115 Pa. Commw. Page 3]

This case is another in a series of continuing conflicts between Eureka Stone Quarry, Inc. (Eureka) and Wrightstown Township (Township) and involves the consolidated appeals of Eureka from two-cease-and-desist orders issued by the Township zoning officer.

The quarry operated by Eureka consists of two separate parcels (one 21.277 acres; the other 9.185 acres), and is known as the Rush Valley II Quarry. Quarrying activity has been conducted at this location since 1898, although Eureka has only operated the quarry since 1969.

There are two walls of the quarry which are relevant to this appeal. The northeastern face of the quarry abuts the New Hope and Ivyland Railroad (NH&I). The distance from the face of the quarry to the property boundary on the northeastern side of the quarry varies from 40 to 190 feet. The last extraction of stone occurred on this face of the quarry in 1968. Eureka holds a permit from the Department of Environmental Resources (DER) which would allow Eureka to extract stone to within twenty-five feet of the property boundary of this face of the quarry.

The northwestern face of the quarry abuts Swamp Road. The distance from the quarry face to Swamp Road ranges from 60 to 225 feet. This face of the quarry

[ 115 Pa. Commw. Page 4]

    was stripped of trees, vegetation and overburden*fn1 sometime prior to 1962, and the last stone was extracted from this area in approximately 1962. Another one of Eureka's DER permits would allow it to extract stone to within 100 feet of Swamp Road.

In December 1971, the Township enacted a zoning ordinance pursuant to the provisions of the Pennsylvania Municipalities Planning Code (MPC),*fn2 and zoned Eureka's property QA (Quarry-Agricultural). Section 403.1 of the 1971 Township zoning ordinance contained the following setback restrictions for quarries:

Setback. No extraction shall be conducted closer than two hundred (200) feet to the boundary of any district in which extraction is permitted nor closer than three hundred (300) feet from the center line of any street . . . nor closer than four hundred (400) feet to the point of intersection of center lines of two streets.

In 1976, the Township enacted a new zoning ordinance and Section 405.G.11(a) of the 1976 ordinance contained the identical setback provisions for quarries, but further added that "[t]he setback area shall not be used for any other use in conjunction with the extraction except access streets, berms, screening, landscaping and signs." Both the northeast and northwest faces of the quarry are entirely within these setback restrictions.

In May, 1980, Eureka attempted to start stripping the overburden from the northeastern face of the quarry in preparation for extraction of stone. The Township zoning officer issued a cease-and-desist order against

[ 115 Pa. Commw. Page 5]

Eureka, inter alia, enjoining it from further quarrying activity on the northeast face of the quarry. Eureka appealed the zoning officer's order to the Wrightstown Township Zoning Hearing Board (Board), and alternatively, filed a request for a variance. The Board ruled that Eureka could not extract stone from the northeast face of the quarry, thereby upholding that portion of the zoning officer's cease-and-desist order. The Board also ruled that Eureka had failed to show the unnecessary hardship required for a variance and failed also to show that the expansion of its use would not be detrimental to the public. Eureka then appealed the Board's decision to the Court of Common Pleas of Bucks County.

Sometime during 1983, the Township joined with Newtown Borough, Newtown Township and Upper Makefield Township to form the Newtown Area Joint Zoning Hearing Board (Joint Board), pursuant to the provisions of Section 904 of the MPC.*fn3 The Township also enacted in 1983 the Joint Municipal Zoning Ordinance (JMZO). This ordinance superseded and repealed the Wrightstown Township Zoning Ordinance of 1976, and by Section 703.B.2 of the JMZO provided for minimum 200 foot "side" and "rear" yard setbacks in quarry use areas, a minimum 300 foot "front yard" setback measured from the center line of any street, and a minimum 400 foot setback from the point of intersection of center line of two streets.

In late August, 1984, Eureka placed a drilling rig within the setback area along the northwest face of the quarry and then drilled holes in order to facilitate the placement of explosives to begin the extraction of stone. Shortly thereafter, on September 5, 1984, the Township zoning officer issued a second cease-and-desist order against Eureka.

[ 115 Pa. Commw. Page 6]

Eureka appealed to the Joint Board arguing that excavation of stone within the setback areas was either a permitted use, or the continuation of a use of a nonconforming structure permitted under Section 1203.A of the JMZO, or the expansion of a nonconforming structure permitted under Section 1208.B of the JMZO. Alternatively, Eureka requested that a variance be granted. On October 17, 1984, while Eureka's appeal was still pending before the Joint Board, Section 803.B.14(1) of the JMZO was amended to read as follows:

No extraction shall be conducted closer than two hundred (200) feet to the boundary of any district in which extraction is permitted nor closer than three hundred (300) feet from the center line of any street, nor closer than four hundred (400) feet to the point of intersection of the Center lines of two streets. The setback area shall not be used for any other use in conjunction with extraction except access streets, berms, screening, landscaping and signs.

Subsequently, the Joint Board held that Eureka had no right to quarry stone within the setback area and that it was not entitled to a variance. Eureka again appealed to the court of common pleas and the court consolidated this appeal with Eureka's appeal from the 1981 Board decision.*fn4 The trial court, without taking additional ...


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