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10/14/97 EASTERN CONSOLIDATION AND DISTRIBUTION

October 14, 1997

EASTERN CONSOLIDATION AND DISTRIBUTION SERVICES, INC., BARON ENTERPRISES, HUGO SERVICES, INC., EASTERN REPAIR CENTER, INC., NEW PENN MOTOR EXPRESS, LEBARNOLD, INC. AND ARNOLD INDUSTRIES, INC., APPELLANTS
v.
BOARD OF COMMISSIONERS OF HAMPDEN TOWNSHIP AND WASTE MANAGEMENT OF PENNSYLVANIA, INC.



Appealed From No. 95-6890. Common Pleas Court of the County of Cumberland. Judge OLER, JR.

Before: Honorable Bernard L. McGINLEY, Judge, Honorable Dan Pellegrini, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Senior Judge Jiuliante. Judge Leadbetter did not participate in the decision in this case.

The opinion of the court was delivered by: Jiuliante

OPINION BY

SENIOR JUDGE JIULIANTE

FILED: October 14, 1997

Before this Court is an appeal of a February 5, 1997 order of the Cumberland County Court of Common Pleas affirming Appellee Board of Commissioners of Hampden Township's (the Township) approval of a land development plan for a municipal waste transfer station filed by Intervenor Waste Management of Pennsylvania, Inc. (Waste Management).

On August 23, 1995, Waste Management filed an Application for Subdivision or Land Development Approval with the Township, requesting permission to construct a solid waste transfer facility on a 16.61-acre lot in an Industrial Park in the Township's Industrial (General) (I-G) zoning district. Waste Management proposed to construct an 11,250-square foot transfer building and access drive, transfer trailer storage area, and a truck weighing station, utilizing 1.94 acres of the parcel. As found by the trial court, the proposed transfer station was to be a facility for the collection of municipal and construction waste from incoming trucks, the temporary storage of such waste on-site in an enclosed building, and the transfer of the waste to outgoing trucks for processing or disposal at another facility. The facility would transfer up to 600 tons per day on the average, with a maximum of 800 tons per day, of municipal, commercial, nonhazardous industrial solid waste, and nonimpacting municipal-like waste from industrial facilities.

Waste Management's application was considered at a meeting of the Township Planning Commission on September 14, 1995. At the meeting, Waste Management addressed several concerns raised by the Township including storm water management plans for the site, potential traffic problems near the site, the need for a queuing area for trucks at the site and potential odor problems. The Planning Commission voted unanimously to approve the preliminary land development plan, subject to review and approval by the Pennsylvania Department of Environmental Protection and the Cumberland County Planning Commission.

The Township Board of Commissioners subsequently considered the application at a September 27, 1995 meeting, and then tabled it pending submission by Waste Management of a proposal concerning a contribution to the upgrade of the intersection of the Industrial Park access road and the adjacent road. Waste Management later agreed to pay $15,000 to the Township toward improvement of the intersection. The application was considered again at a November 2, 1995 meeting of the Board, at which counsel for business neighbors of the proposed development, Appellants herein, *fn1 appeared to raise their objections concerning potential traffic, water and odor problems. Following Discussion, the Board voted unanimously to approve the plan.

Appellants appealed the Board's decision granting Waste Management's application to the trial court, and Waste Management intervened. A motion for hearing to present additional evidence filed by Appellants was denied, because the court concluded that the issues raised by the appeal had been discussed during the approval process by both the Planning Commission and the Board, and that the merits could be considered on the existing record. After conducting a de novo review of the evidence presented to the Board, and making its own findings of fact based on that record, the trial court issued an order affirming the approval of the land development plan. Appellants' appeal of this order is now before us.

As a preliminary matter, the scope of our review in this case requires some explanation. First, as we will conclude below, the trial court properly exercised its discretion not to take additional evidence. In such a situation, where the trial court takes no evidence, we would normally review the board's decision to determine if it committed an error of law or abused its discretion, which may be found if the board's findings of fact are not supported by substantial evidence. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). In the case at bar, however, the court made its own findings of fact, pursuant to Section 1005-A of the Municipalities Planning Code (MPC), *fn2 53 P.S. § 11005-A, which provides that in a land use appeal, "if the record does not include findings of fact, the court shall make its own findings based on the record below." We have held that the court may make the necessary findings under the MPC, where the board has not, even if it takes no additional evidence. Ford v. Zoning Hearing Board of Caernarvon Township, 151 Pa. Commw. 323, 616 A.2d 1089 (Pa. Commw. 1992).

In a case where the trial court takes no additional evidence, but makes it own findings based on the record before the board, we must examine the trial court's decision, not the board's, for evidentiary support. Koutrakos v. Zoning Hearing Board of Newtown Township, 685 A.2d 639 (Pa. Commw. 1996). See also Gryshuk v. Kolb, 685 A.2d 629 (Pa. Commw. 1996) (trial court is the fact-finder when the board has not made findings). Accordingly, the scope of our review in the case now before us is whether the trial court committed an abuse of discretion or an error of law. Faulkner v. Board of Adjustment of Moosic Borough, 154 Pa. Commw. 616, 624 A.2d 677 (Pa. Commw. 1993). We may conclude that the court abused its discretion only if its findings are not supported by substantial evidence, which is such relevant evidence as a reasonable mind might accept as adequate to support a Conclusion. Valley View Civic Association.

Keeping in mind our appropriate scope of review, we will address the following issues raised by Appellants: 1) whether the trial court abused its discretion, violated the Local Agency Law and denied Appellants' right to due process by denying their motion for hearing to present additional evidence; 2) whether a municipal waste transfer station is a permitted use within the Township's I-G zoning district; and 3) whether the trial court's findings of fact are supported by substantial evidence.

Motion to Present Additional Evidence

Appellants argue initially that the trial court erred in denying their motion for hearing to present additional evidence. They claim that without a hearing, the trial court did not have sufficient evidence to rule on the issues raised. We do not agree. Section 1005-A of the MPC, 53 P.S. § 11005-A, provides, in part, as follows:

If, upon motion, it is shown that proper consideration of the land use appeal requires the presentation of additional evidence, a Judge of the court may hold a hearing to receive additional evidence, may remand the case to the body, agency or officer whose decision or order has been brought up ...


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