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Pennsy Supply, Inc. v. Zoning Hearing Board of Dorrance Township

December 22, 2009


The opinion of the court was delivered by: Judge Butler

Argued: November 10, 2009



Pennsy Supply, Inc. (Pennsy) appeals from the June 26, 2008 order of the Court of Common Pleas of Luzerne County (trial court) denying its appeal from the July 19, 2007 decision of the Zoning Hearing Board of Dorrance Township (ZHB) which denied Pennsy's application for special exception, variances and certain of its challenges to the validity of zoning ordinances related to the expansion of its quarry in Dorrance Township (Township). The issues before this Court for consideration are:*fn1 (1) whether the ZHB failed to make findings of fact and conclusions of law in accordance with Section 908(9) of the Pennsylvania Municipalities Planning Code (MPC);*fn2 (2) whether the burden of proof used by the ZHB and the trial court was in error; (3) whether the trial court erred when it imposed upon Pennsy the burden of proof set forth in Butler v. Derr Flooring Co., 285 A.2d 538 (Pa. Cmwlth. 1971); (4) whether the ZHB capriciously disregarded Pennsy's evidence as to whether expansion of the quarry would adversely affect the health, safety and welfare of the community; (5) whether the ZHB erred in finding that Sections 2.05113, 2.05122 and 2.05124 of the Zoning Ordinance of Dorrance Township, Pennsylvania (1982) (Zoning Ordinance)*fn3 applied to Pennsy's application; and, (6) whether the ZHB erred in denying as moot Pennsy's requested variances. For the reasons stated below, we affirm the decision of the trial court.

Pennsy owns a 246-acre parcel of land (Property) along the south side of Small Mountain Road in the Township, in an area zoned M-2 (light industrial) and M-3 (heavy industrial). The Property currently contains a hot mix asphalt plant and a ready mix concrete plant, and Pennsy uses it to store stone and similar materials it uses for its road construction business. For over 18 years, Pennsy has operated a quarry on 128 acres it also owns on the north side of Small Mountain Road. Pennsy estimates, however, that the amount of useable stone in the existing quarry will be depleted in two to three years, and the 150 people it employs will then be without jobs.

On December 7, 2006, Pennsy filed an application with the ZHB seeking a special exception and variances associated therewith, and challenging the validity of certain of the Township's ordinances, in order to expand its existing quarry operation to excavate the Property on the south side of Small Mountain Road. The Property is surrounded on the east by Interstate 81, on the south by two business properties and several residences, on the west by forested area, and on the north by Pennsy's existing quarry. The excavation will take place at least 1,295 feet from the nearest residence, and approximately 850 feet from the nearest business. Pennsy proposes to operate primary and secondary crushers, a motor control center and approximately six conveyors on the Property in the area of the excavation. The equipment, which will not exceed 50 feet in height, will be located at least 1,000 feet from the nearest offsite commercial building, and 1,900 feet from the nearest residence. A conveyor is proposed to span South Mountain Road at a height of at least 20 feet for the purpose of transporting processed materials from the south side to the finished processing plant on the north side, in order to eliminate the need for excess truck traffic and/or processing equipment.

On July 19, 2007, after conducting numerous hearings at which a number of individual property owners testified in opposition (objectors), the ZHB issued a decision denying Pennsy's application. On August 17, 2007, Pennsy appealed the ZHB's decision to the trial court.*fn4 On March 20, 2008, the trial court, upon stipulation by the parties, ordered that Margaret A. Cybulski n/k/a Margaret A. Lenahan n/k/a Margaret Lenahan and Kevin G. Casey (Intervenors) shall be intervenors in this action. On June 26, 2008, the trial court denied Pennsy's appeal. On July 22, 2008, Pennsy filed an Application for Reconsideration, which was denied by the trial court. On July 17, 2008, Pennsy filed an appeal to this Court.*fn5


Pennsy first argues on appeal that the ZHB erred by broadly concluding that the objectors met their burden of proving that granting Pennsy's request for special exception would be detrimental to the health, safety and general welfare of the community, rather than making essential findings of fact and conclusions of law in accordance with Section 908(9) of the MPC. We disagree. Section 908(9) of the MPC provides, in pertinent part, that the ZHB "shall render a written decision . . . [and, w]here the application is . . . denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor." This is "to show that [the ZHB's] decision was reasoned and not arbitrary." Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807, 816 (Pa. Cmwlth. 2005). "[T]here is no requirement that [the ZHB] cite specific evidence in support of each of its findings." Id. So long as its decision "is clear and substantially reflects application of the law governing variances[, it] is sufficient to enable effective review." Id. Moreover, "[d]eterminations as to the credibility of witnesses and the weight to be given to evidence are matters left solely to the [ZHB] in the performance of its factfinding role." Borough of Youngsville v. Zoning Hearing Bd. of Borough of Youngsville, 450 A.2d 1086, 1089 (Pa. Cmwlth. 1982).

In addition to its decision on Pennsy's application, the ZHB issued 32 findings of fact and six conclusions of law, which specifically identified each of Pennsy's requests, identified each witness, their area of expertise, what they did relative to Pennsy's application, and certain details concerning their testimony, then stated for each that he was subject to cross-examination, and that his testimony is accurately reflected in the record. ZHB's Findings of Fact and Conclusions of Law (FOF) ¶¶ 20, 23-29, 31. Relative to the witnesses in opposition to Pennsy's application, the ZHB acknowledged their very detailed testimony in the record as to the impact the proposed quarry expansion would have on their individual lives, and its impact on the health, the environment, noise, water quality and the safety of the community at large. FOF ¶ 30. In its Conclusions of Law, the ZHB set forth the burdens to be met by the parties, declared that Pennsy met its burden, thereby shifting the burden to the objectors who "met said burden," then denied Pennsy's request for special exception. FOF ¶ 33. The trial court stated that "the Findings of Fact and Conclusions of Law provided by the [ZHB] were sufficient to provide [Pennsy] with the basis for its Decision." Pennsy Supply, Inc. v. Zoning Hearing Bd. of Dorrance Twp. (No. 9435 of 2007, filed September 15, 2008), slip op. at 4.

The ZHB's decision clearly reflects that it heard and considered all of the evidence presented, and found that, while both parties met their burden, the objectors' testimony was more compelling. The ZHB's numerous findings of fact and conclusions of law satisfy the requirements of the MPC, thereby providing for meaningful judicial review. Because there was sufficient information to support a conclusion that the ZHB's findings were reasoned and not arbitrary, we hold that the ZHB made essential findings of fact and conclusions based thereon, together with reasons therefore, in accordance with Section 908(9) of the MPC.


Next, Pennsy argues that the ZHB and the trial court erred by not requiring the objectors to prove that granting Pennsy's application for special exception would be detrimental to the health, safety and welfare "to a high degree of probability" and, as a result, the ZHB abused its discretion because there was not sufficient evidence to support its denial of Pennsy's application. Pennsy Br. at 22, 25. Again, we find no error on the part of the ZHB. "An abuse of discretion will be found only where the [ZHB's] findings are not supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cottone v. Zoning Hearing Bd. of Polk Twp., 954 A.2d 1271, 1275 n.2 (Pa. Cmwlth. 2008) (citation omitted). Pennsy sought a special exception under Section 2.051 of the Township's Zoning Ordinance, whichpermits new excavations of minerals and rock in heavy industrial districts, with the ZHB's approval, subject to certain conditions. Zoning Ordinance Section 2.051. A special exception is a conditionally permitted use, legislatively allowed, so long as a zoning hearing board finds that the standards and conditions set forth in the ordinance are met. Bray v. Zoning Bd. of Adjustment, 410 A.2d 909 (Pa. Cmwlth. 1980).

[It] is not an 'exception' to the zoning ordinance; rather, it is a use permitted in accordance with the express standards and criteria in the zoning ordinance. The applicant has the burden of proving: (1) that the proposed use is a type permitted by special exception and (2) that the proposed use complies with the requirements in the ordinance for such a special exception. It is presumed that the local legislature has considered that the special exception use satisfies local concerns for the general health, safety, and welfare. Accordingly, once an applicant for a special exception shows compliance with the ...

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