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In re Appeal of Drumore Crossings

November 18, 2009

IN RE: APPEAL OF DRUMORE CROSSINGS, L.P. FROM THE DECISION OF THE HEARING OFFICER DATED FEBRUARY 9, 2007 DENYING APPLICATION FOR CONDITIONAL USE APPROVAL
APPEAL OF: DRUMORE CROSSINGS, L.P.



The opinion of the court was delivered by: Judge Leavitt

Argued: September 17, 2009

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

Drumore Crossings, L.P., appeals an order of the Court of Common Pleas of Lancaster County (trial court) denying Drumore Crossings' conditional use application to develop a shopping center on property it owns in Drumore Township (Property). In doing so, the trial court affirmed the decision of Drumore Township that Drumore Crossings failed to prove that it would use an "approved means of sewage disposal" for its proposed shopping center, as required by the Drumore Township Zoning Ordinance*fn1 (Zoning Ordinance) for approval of a conditional use. Concluding that Drumore Crossings did satisfy its burden with respect to its proposed sewage disposal system, we reverse the trial court.

In May of 2003, Drumore Crossings sought approval of its proposal to develop its Property as a shopping center. The Property is located in the Township's Commercial/Industrial zoning district, where shopping centers are expressly authorized as a conditional use. Because the Township does not have a public sewer system, Drumore Crossings was required to show that its development would employ an "approved means" of on-site sanitary sewage treatment. ZONING ORDINANCE, Art. 4, §450.8.*fn2 Because of the Property's proximity to Fishing Creek, a high quality stream, Drumore Crossings' proposed sewage treatment plant had to include a plan to denitrify its sewage effluent.

The Board of Supervisors of Drumore Township (Supervisors) scheduled a hearing on Drumore Crossings' conditional use application. Twenty-two township residents (Objectors) intervened in opposition to the application. The Supervisors appointed a hearing officer to conduct the proceeding.*fn3

Thereafter, the Supervisors intervened in the hearing to oppose the application. Hearings were conducted over 24 evenings.

At the hearing, Drumore Crossings presented the testimony of its expert sewer engineer, Fred Ebert, to support the fact that its proposed development would use an "approved means of sewage disposal." ZONING ORDINANCE, §450.8. Ebert described the three types of on-site treatment plants that can dispose of treated effluent by drip irrigation: a Biological Engineered Single Sludge Treatment system (BESST System), a Sequential Batch Reactor system, and a Modified Bardenpho system. Ebert testified that any one of these three systems was feasible for the Property and each has been approved by the Pennsylvania Department of Environmental Protection (DEP). Ebert testified that one of the three systems would be selected at the time of construction and in accordance with directives of DEP, which had responsibility for permitting on-site sewage treatment plants.

When questioned as to what specific system Drumore Crossings proposed to use, Ebert identified the BESST System. He explained that BESST systems with denitrification components have been approved by DEP for other commercial uses and have been used successfully in shopping centers in New Jersey, Florida, and other states.

Drumore Crossings also presented the testimony of Thomas Horrex, an expert in the operation and maintenance of sewage package treatment plants. Horrex explained that he operates a BESST System in East Brandywine Township that denitrifies wastewater in accordance with DEP's regulations. Horrex stated that the BESST System proposed for Drumore Crossings' proposed shopping center would be acceptable to, and permitted by, DEP.

Finally, Drumore Crossings presented the testimony of Dr. William Palkovics, an expert soil scientist. Dr. Palkovics opined that DEP would approve Drumore Crossings' plan because the suggested methods of sewage treatment and disposal, an on-site mechanical treatment plant using drip irrigation, were generally accepted and permitted by DEP.

In response, Objectors presented the testimony of two DEP employees: Jennifer Fields and Keith Dudley. Both work in DEP's Southeast Regional Office*fn4 and have responsibility for the review and permitting of sewage package treatment plants. Both witnesses focused on the acceptability of a BESST System at the Property.

Fields testified that plants using a BESST System had been issued permits in the Southeast Region. One such BESST System is used by French Creek Elementary School, and it has consistently failed to denitrify its effluents within the nitrogen limits of its permit. According to Fields, the investigation into why the French Creek BESST System is not meeting expectations was ongoing. As a result, no new permits for a BESST System would be issued in the Southeast Region until the French Creek problems were resolved. However, Fields acknowledged, on cross-examination, that the malfunctions in the French Creek BESST System could be the result of inept operators rather than the system itself. She also admitted that DEP does not prohibit the use of a BESST System.

Dudley confirmed that the Southeast Regional Office would not issue permits for a new BESST System until the French Creek investigation had concluded. He conceded, however, that DEP would not reject a BESST System on the basis of the performance of one plant. It was more likely that DEP would require future applicants to modify the BESST System, based on its evaluation of the French ...


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