The opinion of the court was delivered by: Judge Cohn Jubelirer
Argued: September 8, 2008
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.
The Board of Supervisors of Sugarloaf Township (Board) and Karen J. Mistal, Georgia Nause, and Gary Marsch, et al. (Taxpayers) appeal an order by the Court of Common Pleas of Luzerne County (trial court) granting a request for a curative amendment to the Sugarloaf Township Zoning Ordinance (Ordinance) filed by Joseph Larock, Cinda Larock Danna, and Mary Louise Larock Burke (collectively, Larocks). At issue in this case is whether the Ordinance, which permits a quarry only in one zoning district where all minerals have been mined that can be economically extracted, is consistent with Section 603(i) of the Pennsylvania Municipalities Planning Code (MPC),*fn1 which mandates that ordinances provide for "reasonable development of minerals." 53 P.S. § 10603(i). The trial court, on remand from this Court, granted a curative amendment to the Ordinance and Map, which would permit the operation of a quarry in what had been zoned as a Conservation District.
This case was originally brought to this Court in 2001, when the Larocks requested a variance. Senior Judge Mirarchi, writing for this Court, reversed the trial court's order granting the variance and stated that the more appropriate remedy would be for the Larocks to request rezoning or a curative amendment. The Larocks then filed the present suit requesting a curative amendment. In 2005, this Court issued an opinion in Larock v. Board of Supervisors of Sugarloaf Township, 866 A.2d 1208 (Pa. Cmwlth. 2005) (Larock I), vacating the trial court's first order granting the curative amendment and remanding with directions to the trial court to remand the case to the Board to evaluate all statutory factors for a curative zoning amendment, including reasonable development of minerals pursuant to Section 603(i) of the MPC. After the Board and trial court further evaluated the factors consistent with our remand order, this matter is again before our Court on appeal.
The Larocks "own three tracts of land, consisting of approximately 235 acres in an area" that was zoned A-1 Conservation and is now zoned S-1 Conservation, in Sugarloaf Township (Township). Larock I, 866 A.2d at 1209.
On August 24, 1998, they filed a petition for a curative amendment in which they alleged that [Sugarloaf] Township excluded or, alternatively, did not meet its "fair share" obligation to provide for "non-coal surface mining, concrete batch and manufacturing plants, bituminous asphalt plants; the manufacture of stone related products, the storage, maintenance and repair of quarry vehicles and equipment; the storage of stone and stone products, stone crushing and screening, and attendant and accessory uses for the aforesaid structures, storage equipment, scales and offices related to the operation of the foregoing." The curative amendment sought to create a new zoning classification called a "Mineral Recovery District" on the Larocks' three tracts of land.... As of the date the curative amendment was filed, the [Ordinance] did provide, generally, for mining in the I-1 General Industrial District.... The Sugarloaf Township Planning Commission reviewed the proposed curative amendment and, on December 5, 2001, recommended that the Board not accept it in its current form because it was inconsistent with the amended ordinance. After receiving the recommendation, the Board began hearings on the proposed curative amendment and, at the first hearing on January 29, 2002, the Larocks' expert witness, John Ross, testified. Ross, an engineer [who works for the company that wants to mine the Larock property], testified that 80-85% of the land in the I-1 General Industrial District had been mined out and that what remained available for mining was less than one half of one percent of the total acreage of the Township. He further stated that due to the existence of various factors, such as aquifers, porous rock formations, mine pits, overhead power lines, old spoils from strip mining, resultant instability from previous deep pit mining and underground gas lines, only three distinct areas of the I-1 District potentially remained available for mineral extraction (a 25-33 acre tract, a 24 acre tract, and a 49 acre tract), and that they were so small that, from an engineering and economic standpoint, they could not feasibly be used for that purpose.
Id. at 1209-10 (internal citations omitted). Taxpayers were also present at this hearing, as were several other "neighbors, all of whom testified in opposition to the curative amendment due to the aesthetic impact, air pollution and damage to the roads that would follow if this curative amendment were granted."*fn2 Id. at 1210.
[T]he Township's expert, George Fasic... an urban planner, testified that the Township has a total of 1,380 acres that are developed, leaving approximately 12,620 acres undeveloped, although not all of this undeveloped land is able to be developed due to the presence of highways. Fasic further stated that the I-1 General Industrial District is comprised of a total of 580 acres, [representing] 4.5%-8% of the total unimproved land in the Township, which, in his opinion, is "highly adequate" for mining in a township such as Sugarloaf. Fasic also stated, based on a two year old map and geological reports he had been given to review, that there was sandstone under the entire Township, but he could not state whether it had since been recovered or could reasonably be recovered.
Id. (internal citations omitted).
On May 15, 2002, "[t]he Board concluded that the... [O]rdinance was valid; therefore, it found no need to create a Mineral Recovery District and denied the curative amendment." Id. On appeal, the trial court, which did not take additional evidence:
[r]eversed the decision of the Board, finding the Larocks' expert, Ross, credible to the extent that he stated that only.5% of the area currently zoned for mining could actually be mined and that this was not sufficient for mineral extraction. Specifically, the trial court stated that the [Ordinance] is inconsistent with Section 603(i) of the MPC, 53 P.S. § 10603(i), which requires zoning ordinances to provide for the reasonable development of minerals in each municipality and, thus, the [trial] court found the [O]rdinance invalid. [The trial court] opined that the [O]rdinance "does not provide for the reasonable development of minerals in Sugarloaf Township, but merely pays lip service to this requirement by allowing for surface-mining, quarrying, and accessory uses, in a geographically limited area in which development and extraction... [is]... unreasonable [and] unfeasible."... The trial court concluded that the Township had zoned the development of minerals out of existence, in contravention of the MPC, by making it impossible to mine or quarry. It then provided site specific relief by granting the curative amendment in toto, permitting mining, and cement and asphalt plants in the Conservation District.
 Ross testified that 85% of the I-1 General Industrial District has already been mined out. The remaining land equates to roughly 85 acres. These 85 acres represent about 17% of the I-1 District. Ross testified that these 85 acres represent "about half of one percent" of the total area of the Township that has not been mined out in that District. According to Ross, it is only this percentage (.5%) that is currently available for extraction, if it is feasible. Section 603 of the MPC states in pertinent part: (i) Zoning ordinances shall provide for the reasonable development of minerals in each municipality.
Id. at 1210-11 & nn.5-6 (internal citations omitted) (alterations to quotation in original).
On appeal, this Court noted that "although the parties focus[ed] on a 'fair share' analysis, this case involve[d] the statutory construction and application of Section 603 of the MPC" ...