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HHI Trucking & Supply, Inc. v. Borough Council of the Borough of Oakmont

March 5, 2010

HHI TRUCKING & SUPPLY, INC.
v.
BOROUGH COUNCIL OF THE BOROUGH OF OAKMONT, APPELLANT



The opinion of the court was delivered by: Judge Leavitt

Argued: October 13, 2009

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE KEITH B. QUIGLEY, Senior Judge.

OPINION

The Council of the Borough of Oakmont (Borough Council) appeals an order of the Court of Common Pleas of Allegheny County (trial court) setting aside 14 of the 33 conditions imposed by Borough Council in connection with its grant of a conditional use to HHI Trucking & Supply, Inc. The trial court set aside the conditions because the evidence of record did not support their imposition. Finding no error in the trial court's conclusion, we affirm.

In March 2007, HHI requested approval to construct a ready-mix concrete plant on land located in the Borough of Oakmont (Property). The Property consists of a vacant, 3.2 acre plot that is located in the Borough's industrial zoning district, where a concrete plant is specifically permitted as a conditional use. HHI leased the land to be used for this purpose from Anthony Folino. Access to the Property is provided by Dark Hollow Road, which varies in width from 15.5 feet to 23 feet and lacks shoulders. The paving on Dark Hollow Road is marred by potholes, alligator cracking and rutting. At present, Dark Hollow Road experiences significant truck traffic from Folino Construction Company, which is located on land adjacent to the proposed location for HHI's plant.

In March 2007, the Borough's Planning Commission recommended approval of HHI's proposed development of the Property, subject to several conditions. Those recommendations included, inter alia, the following: that HHI limit its hours of operation from 7:00 a.m. to 5:00 p.m.; that HHI submit air quality reports annually; that HHI do an acoustic analysis; and that the Borough Traffic Engineer study the safety and adequacy of Dark Hollow Road.*fn1

From September 2007 through March 2008, Borough Council conducted five hearings on HHI's conditional use application. The Oakmont Commons Homeowners' Association and a group of approximately 20 area residents objected to the application (Objectors) because HHI's proposed plant will be located near their residential neighborhood of townhouses and single family homes. The issue at the hearing was whether HHI's proposed plant satisfied the conditional use requirements set forth in the Borough of Oakmont Zoning Ordinance (Zoning Ordinance).*fn2

HHI's nine witnesses established that commercial truck traffic on Dark Hollow Road has been a regular occurrence since the early 1960s, when an asphalt plant was built; it continued to operate until 1994. In 1995, Folino Construction, a topsoil reclaiming business, opened for business. It sends 40 to 50 trucks down Dark Hollow Road, which is fewer than the number formerly used by the asphalt plant. The trucks to be used by HHI are comparable in size to those used by Folino Construction.

HHI's witnesses addressed the construction and operation of its proposed concrete facility. They explained that the plant will consist of a series of storage bins and silos, as well as conveyor belts to move the materials used to make concrete. Concrete will be produced by depositing sand, aggregate, water and cement into cement trucks, which will combine these elements together while driving to the delivery site. A storm water retention pond and a series of pits will be built to reclaim water used during the cement-mixing process. The plant will operate in the spring, summer and early autumn months because concrete cannot be poured while the ground is frozen.

With respect to the noise that will be generated by loading the cement trucks, HHI offered the testimony of Steven Roth, an acoustical expert. He explained that HHI will meet acceptable levels of noise for a residential property, as measured from the home closest to the plant,*fn3 by implementing his recommendations for reducing plant noise. Roth was critical of the Zoning Ordinance because it does not specify which of the American National Standards Institute (ANSI) standards should be used; as such, the Ordinance does not offer meaningful guidance. In developing his recommendations, Roth used ANSI Standard S-129.1, which addresses residential noise standards. HHI agreed to implement Roth's recommended sound controls in an effort to alleviate the neighhbors' concerns about noise.

With respect to the plant's impact on air quality, HHI presented the testimony of John Frye, an expert in environmental health and safety issues. He concluded that the plant would not need a permit to operate because its impact on air quality would be negligible. The Allegheny County Health Department confirmed Frye's judgment, stating in an April 2007 letter that the plant does not require an installation or operating permit because it "is a source of minor significance." Reproduced Record at 1093a (R.R. ___). Borough Council found, as fact, that HHI's proposed plant meets all county and state air quality standards. Nevertheless, HHI voluntarily agreed to install fabric collectors and bag houses to collect particulates generated by the loading of the cement-mixing trucks.

With respect to the plant's impact on traffic on Dark Hollow Road, HHI presented the testimony of Chuck Wooster, a traffic engineering expert. Wooster explained that HHI's plant will add little to the truck traffic on Dark Hollow Road because Folino Construction's trucks would pick up and deliver aggregate to the plant as needed on their return trips to the adjacent property.*fn4

In response to HHI's case, Objectors argued that the plant would not comply with the noise standards in the Zoning Ordinance. They also asserted that the 20-ton concrete trucks used to make deliveries to the plant would exacerbate the damage to Dark Hollow Road caused by Folino Construction's trucks.

In support of their noise claims, Objectors presented the testimony of Dr. William Thornton, an expert in acoustics, vibrations and noise. Dr. Thornton opined that the plant would grossly exceed acceptable noise levels for a residential community. On cross-examination, however, Dr. Thornton conceded that the Zoning Ordinance is vague and ambiguous.

Several residents then testified about the ways that the proposed plant would adversely affect their residential community. Beth Cameron, an artist whose home is located 422 feet from the Property, testified that the noise generated by Folino Construction operations has already adversely affected her enjoyment of her home. Bruce Cosentino, another neighbor, testified that it is physically impossible for two vehicles to pass one another at the narrowest points on Dark Hollow Road. Dean Hornsby, another neighbor, testified that he has "seen vehicles actually pull off, and they have fallen into the side of the road." R.R. 731a. He further stated that he once spotted a Folino Construction truck in a ditch along Dark Hollow Road.

In June 2008, Borough Council granted HHI's application subject to 33 conditions addressing, inter alia, plant operations; grading, erosion and sedimentation and stormwater management; air quality; screening and landscaping; signage; lighting; noise controls and sound attenuation; and traffic improvements. HHI appealed 14 of the 33 conditions, arguing that they were unreasonable and effectively prevent it from either building or operating its proposed plant. The challenged conditions, excerpted from Borough Council's decision, are as follows:

General Conditions

HHI shall reimburse the Borough for all plan review fees, hearing fees, and other fees permitted by the Municipalities Planning Code*fn5 incurred during the ...


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