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APPEAL HARBUCKS v. BOARD SUPERVISORS NOCKAMIXON CENTER HILL (06/15/89)

decided: June 15, 1989.

IN RE APPEAL OF HARBUCKS, INC., FROM THE DECISION OF THE BOARD OF SUPERVISORS OF NOCKAMIXON TOWNSHIP. HARBUCKS, INC., APPELLANT,
v.
BOARD OF SUPERVISORS OF NOCKAMIXON CENTER HILL, APPELLEE



Appeal from Common Pleas Court, Bucks County; Honorable Leonard B. Sokolov, Judge.

COUNSEL

Elaine M. Ross, King of Prussia, David I. Davis and Marc B. Cohen, Law Offices of Jonathan DeYoung, for appellant.

Terry W. Clemons, Clemons and Klimpl, for Nockamixon Tp. Bd. of Supervisors.

Donald L. Toner, Doylestown, for appellee.

Crumlish, Jr., President Judge, and Craig, Barry, Colins, Palladino, McGinley and Smith, JJ. Crumlish, Jr., President Judge, and Barry and Palladino, JJ., concur in the result only.

Author: Smith

[ 126 Pa. Commw. Page 594]

Harbucks, Inc. (Harbucks) appeals from an order and decision of the Bucks County Court of Common Pleas affirming the decision of the Nockamixon Township Board of Supervisors (Board) which denied Harbucks's application for a curative amendment to the Nockamixon Township Zoning Ordinance (Ordinance) and held that the Ordinance was not exclusionary as to quarrying operations. The issues presented are whether the Ordinance permits quarrying operations within Nockamixon Township (Township) and whether Harbucks' application for curative amendment was properly denied. The trial court is affirmed.*fn1

Harbucks, a Maryland corporation, owns approximately 111 acres of land situated along the east side of Route 611, in Bucks County, Pennsylvania. The property is located in an area zoned industrial pursuant to the Ordinance as enacted in 1968. Section 35 of the Ordinance permits the following uses in the industrial district: production, manufacturing, processing, cleaning, testing, storage and distribution

[ 126 Pa. Commw. Page 595]

    of material, goods, foodstuffs and product. On September 26, 1984, Harbucks filed its application for a curative amendment challenging the substantive validity of the Ordinance on the ground that it excludes a legitimate use within the Township, namely, quarrying operations.

The particular site in question was the subject of much litigation in the early 1970's involving other corporate entities. At that time, several corporations operated a metals reclamation plant at the site which contained in excess of three million gallons of highly acidic liquid containing high concentrations of heavy metals. The metals reclamation activity involved the dumping of various metals into highly acidic lagoons which were comprised of sulfuric acid. The lagoons were not lined and many of the metals seeped into the soil. On April 16, 1970, the trial court found the level of pollution to be so high that it ordered representatives of the Commonwealth of Pennsylvania to enter the premises to remove and dispose of all the polluting substances so as to prevent further harm. Findings of Fact No. 16. The clean-up effort was not entirely successful and to date, the soil still contains high concentrations of heavy metals.

After conducting thirteen hearings, the Board denied Harbucks' application for a curative amendment. Harbucks thereafter appealed to the trial court which concluded that the Board did not err in denying the curative amendment application and upheld the constitutionality of the present Ordinance and further found the Harbucks' site unsuitable for quarrying purposes. Hence, this appeal.*fn2

In support of its position that the Ordinance excludes quarrying, Harbucks contends that the Board erred in concluding that production encompasses quarrying and that the trial court erred in holding that the quarrying activity would fall into the category of either ...


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