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IRVING R. ABBEY ET AL. v. ZONING HEARING BOARD BOROUGH EAST STROUDSBURG AND MONROE COUNTY GENERAL AUTHORITY (05/24/89)

decided: May 24, 1989.

IRVING R. ABBEY ET AL., APPELLANTS,
v.
ZONING HEARING BOARD OF THE BOROUGH OF EAST STROUDSBURG AND MONROE COUNTY GENERAL AUTHORITY, APPELLEES (TWO CASES)



Appeal from Common Pleas Court, Monroe County; Honorable Peter J. O'Brien, Judge.

COUNSEL

Steven E. Krawitz, Edwin Krawitz, Krawitz & Krawitz, E. Stroudsburg, for appellants.

Robert M. Maskrey, Jr., Robinson, Hoffner & Billick, Stroudsburg, for appellee, Zoning Hearing Board of the Borough of East Stroudsburg.

Edmund G. Flynn, Bensinger, Flynn & Weekes, Stroudsburg, for appellee, Monroe County Gen. Authority.

Barry and Palladino, JJ., and Narick, Senior Judge. Palladino, J., dissents as to the reversal of the imposition of bond.

Author: Narick

[ 126 Pa. Commw. Page 238]

Irving R. Abbey, other landowners, and the Pocono Environmental Club (Appellants) appeal from an order of the Court of Common Pleas of Monroe County which affirmed the grant of a special exception use permit (permit) by the Zoning Hearing Board of the Borough of East Stroudsburg (Board) to the Monroe County General Authority (Authority).

The facts are as follows. On May 6, 1987, the Authority filed an application pursuant to Section 4.200(e)(5) of the Zoning Ordinance of the Borough of East Stroudsburg, Ordinance 803, adopted August 2, 1983 (Ordinance), with the Zoning Officer of East Stroudsburg for a permit to construct and operate a "waste-to-energy" and recycling facility (facility). The proposed facility is to be located in an M-1 General Industrial District (M-1 District). The facility would receive solid wastes from commercial haulers operating within Monroe County. Combustible wastes would be processed to produce steam, which generates electricity. The electricity would then be sold to Metropolitan-Edison Company (Met-Ed). Non-combustibles, such as glass and metal, would be separated and recycled, while the other non-combustibles and the ash residue from the processed combustibles would be taken to a permitted landfill operated by either the Authority or out-of-county landfills.

Nine hearings were held before the Board which took voluminous testimony from expert witnesses and objectors to the facility. On November 19, 1987, the Board granted the Authority's application.

[ 126 Pa. Commw. Page 239]

The objectors to the facility, Appellants here, filed an appeal to the trial court in which the Authority intervened. The trial court, without taking additional evidence, entered an order in favor of the Authority. Appellants then appealed to this Court. Upon the filing of this appeal, the Authority petitioned the trial court pursuant to Section 1008(4) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, added by the Act of June 1, 1972, P.L. 333, as amended, 53 P.S. § 11008(4), to impose a bond upon the Appellants as a condition of their appeal. The trial court granted the petition and set bond at $3 million. Appellants also appealed this order. The appeals from both orders have been consolidated for consideration by this Court.

Our scope of review, where a trial court took no additional evidence in reviewing a decision of a zoning hearing board, is limited, as was the trial court's, to a determination of whether the Board abused its discretion, or committed an error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983); Lamb v. Zoning Board of Adjustment, Borough of Ambridge, 111 Pa. Commonwealth Ct. 534, 534 A.2d 577 (1987).

A board abuses its discretion only if its findings are not supported by substantial evidence. Valley View. Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.

Appellants make two arguments: 1) that the Board abused its discretion in granting the permit to the Authority; and, 2) that the trial court abused its discretion by imposing a $3 million bond as a condition for the appeal.

I

First, we must consider whether the Board abused its discretion in granting the special exception. A special exception is authorized pursuant to Section 913 of the MPC, 53 P.S. § ...


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