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Geryville Materials, Inc. v. Planning Commission of Lower Milford Township

Commonwealth Court of Pennsylvania

July 30, 2013

Geryville Materials, Inc., Appellant
v.
Planning Commission of Lower Milford Township, Lehigh County, Pennsylvania

Argued: March 11, 2013

BEFORE HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge

OPINION

MARY HANNAH LEAVITT, Judge

Geryville Materials, Inc. appeals an order of the Court of Common Pleas of Lehigh County (trial court) that affirmed the Lower Milford Township Planning Commission's disapproval of Geryville's preliminary plan to develop a stone quarry. Geryville argues that the trial court and the Planning Commission erred in their construction and application of the applicable ordinances. We reverse and remand.

Geryville owns land in Lower Milford Township. On June 18, 2009, Geryville submitted a preliminary plan to the Planning Commission that described Geryville's plan to develop a stone extraction quarry on 84.56 acres of its 628.48-acre property. Geryville proposed to locate its quarry on the north side of West Mill Hill Road and the quarry's water infiltration facilities[1] on the other side of this road. Between 2009 and 2011, the Planning Commission conducted 20 hearings on Geryville's preliminary plan.

Lower Milford Township opposed the approval of Geryville's preliminary plan and offered several witnesses to support its opposition. Val Britton, a geologist, opined that Geryville's proposed water infiltration system would be insufficient to manage the water generated by the quarry and this would lead to damage of the wetlands on the property. Mark Gallagher, a wetlands expert, testified that the quarry would increase stormwater runoff that could adversely affect both wetlands and woodlands on the property. Charles Schmehl, a community planner, testified that Geryville's preliminary plan was defective because it did not subtract non-contiguous land, i.e., land separated by a road from the remainder of the parcel, when it calculated the buildable site area. He also opined that Geryville's preliminary plan did not propose a proper building envelope.[2]

On October 3, 2011, the Planning Commission voted unanimously to reject Geryville's preliminary plan. Nevertheless, the Planning Commission also listed the conditions that it would have imposed had it approved Geryville's preliminary plan. The Planning Commission rejected Geryville's preliminary plan for three reasons. First, it held that Geryville erred in considering its 84.56-acre property as one parcel when it did its site capacity calculations because the parcel is actually divided into three parcels by public roads. Second, it held that Geryville proposed an impermissible partial preliminary plan because the plan addressed only 84.56 acres of its total parcel of 628 acres. Third, it held that Geryville's preliminary plan did not comply with the natural resource provisions of the Zoning Ordinance that preserve woodlands, watercourses and wetlands. To reach these three conclusions, the Planning Commission relied upon the Township's expert witnesses.

Geryville appealed to the trial court.[3] Geryville argued that the natural resource provisions of the Zoning Ordinance cited by the Planning Commission were preempted by the Pennsylvania Noncoal Surface Mining Conservation and Reclamation Act (Mining Act).[4] Under the Mining Act, the Pennsylvania Department of Environmental Protection has exclusive authority to regulate the operation of noncoal surface mining. Geryville also argued that the Planning Commission erred in concluding that Geryville's property consisted of three separate parcels because a two-lane public road does not interfere with common use of its 84.56 acres. Geryville further argued that the Planning Commission did not act in good faith because it offered no guidance, and it refused to allow Geryville to make clarifying amendments to its preliminary plan. Finally, Geryville challenged the holding that its preliminary plan could be construed a partial plan when it has no present plans for all 628 acres of its property. The trial court affirmed the Planning Commission.

With respect to preemption, the trial court noted that the case law differentiates local ordinances that directly regulate the operation of mines and those that regulate where the regulated activity can take place. Only the former are preempted, as was established in Pennsylvania Coal Company, Inc. v. Township of Conemaugh, 612 A.2d 1090, 1092 (Pa. Cmwlth. 1992). The trial court concluded that the natural resource provisions of the Zoning Ordinance did not regulate the operation of Geryville's proposed quarry. The trial court next rejected Geryville's claim that its proposal related to one parcel, not three, because the Zoning Ordinance defined a "lot" as "[a] parcel of land held in one ownership not divided by a street." Lower Milford Township, Zoning Ordinance (1997), §960 (Zoning Ordinance); R.R. 65a. Finally, the trial court held that the evidence did not support Geryville's claim of bad faith, and it declined to rule on Geryville's challenge to the Planning Commission's "partial land development" conclusion, noting that the court must affirm a denial if even one cited reason has merit. Herr v. Lancaster County Planning Commission, 625 A.2d 164, 168-69 (Pa. Cmwlth. 1993). Geryville then appealed to this Court.[5]

On appeal, Geryville raises five issues. First, it argues that the Planning Commission construed the natural resource provisions in the Zoning Ordinance to mean that the Township could regulate the operations of its proposed quarry. Such regulation is preempted under Section 603 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10603(b).[6] Second, even assuming, arguendo, that these provisions in the Zoning Ordinance are not preempted, Geryville argues that the Planning Commission's critical factual findings, i.e., that Geryville's proposed water control systems will fail and degrade the woodlands and wetlands on its property, are not supported by substantial evidence. Third, Geryville asserts that its property is a single parcel for the purposes of doing the site capacity calculations, regardless of the existing public roads. Fourth, Geryville argues that it did not propose a "partial" land development plan; it seeks approval for its development of 84.56 acres and not for the remainder of the property it happens to own. Finally, Geryville argues that the trial court erred in concluding that the Planning Commission acted in good faith.

We begin with the issue of preemption. When an ordinance regulates the operations of a surface mine, it goes beyond the purview of traditional land use controls. Section 16 of the Mining Act provides as follows:

Except with respect to ordinances adopted pursuant to the act of July 31, 1968 (P.L. 805, No. 247), known as the Pennsylvania Municipalities Planning Code, all local ordinances and enactments purporting to regulate surface mining are hereby superseded. The Commonwealth, by this enactment, hereby preempts the regulation of surface mining as herein defined.

52 P.S. §3316.[7] The Zoning Ordinance provisions preserve natural resources, but Geryville contends that the Planning Commission construed those provisions in a way that covers the operation of the quarry, an activity the Township cannot regulate.

The Planning Commission responds, inter alia, that the Zoning Ordinance natural resource provisions apply to all applicants, not just those proposing a surface mine. The Township notes that in Arbor Resources, LLC v. Nockamixon Township, 973 A.2d 1036, 1046 (Pa. Cmwlth. 2009), this Court held that land preservation is a proper subject of zoning. Provisions on lot size, proximity to endangered species or crucial habitations, and requirements of environmental reports are all traditional land use controls. Further, the Township's evidence concerned Geryville's proposed groundwater management, not the efficacy of Geryville's water infiltration system.

Arbor Resources involved the construction of the 1984 Pennsylvania Oil and Gas Act, which has since been repealed.[8] The 1984 Oil and Gas Act prohibited local ordinances from

contain[ing] provisions which impose conditions, requirements or limitations on the same features of oil and gas well operations regulated by this act or that accomplish the same purposes as set forth in this act. The Commonwealth, by this enactment, hereby preempts ...

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