Submitted: March 11, 2013
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
BERNARD L. McGINLEY, Judge.
Sunrise Lake Association and Conashaugh Lake Community Association (Objectors) contest the order of the Court of Common Pleas of Pike County (trial court) which reversed the Dingman Township Zoning Hearing Board's (ZHB) denial of the application of JoJo Oil Company, Inc., d/b/a Airline Petroleum (Applicant) for a special exception permit for a "bulk fuel transfer station."
Applicant was in the business of selling and delivering propane and home heating oil. In March 2011, Applicant submitted a zoning application to the Township for a bulk fuel transfer station in a RC – Resort/Commercial Zoning District on a 3.3-acre parcel (Property). The proposed use would include two underground 20, 000-gallon heating oil tanks, one above-ground 30, 000-gallon propane tank, a truck-loading area and a turn-around. The site would be unmanned and there would be no office or other structure on the site. The proposed tanks were double-walled and enclosed by an eight-foot high chain link fence topped with barbed wire.
The Zoning Officer determined that a "bulk fuel transfer station" use was not a permitted, conditional or special exception use in any zoning district in the Township. That being the case, the Zoning Officer proceeded in accordance with Section 105 of the Dingman Township Zoning Ordinance (Zoning Ordinance) entitled: "Uses Not Provided For" which sets forth the procedure to be used when a proposed use is neither permitted nor prohibited in the Zoning Ordinance. This "savings provision, " as it is often referred to, provides:
Section 105-Uses Not Provided For
Whenever, in any District established under this Ordinance, a use is neither specifically permitted nor denied and an application is made by the property owner to the Zoning Officer for such use, the application shall be referred to the Zoning Hearing Board which shall have the authority to permit the use; or deny the use, as a Special Exception. The use may be permitted if it is similar to and compatible with permitted uses (uses listed as permitted, conditional uses, and special exceptions) in the district, and in no way conflict with the general purpose and intent of this Ordinance and the use is not permitted in any other district. The Zoning Hearing Board may attach reasonable conditions to the issuance of a permit incorporating exiting standards from similar uses in the district and such other restrictions as the Board may deem appropriate. (Emphasis added).
Zoning Ordinance, Section 105.
The standards for a Special Exception are set forth in Section 404.2 of the Zoning Ordinance:
404.2 Special Exceptions – Uses specified as special exceptions under this Ordinance shall be permitted only after review by the Planning Commission and review and approval by the Zoning Hearing Board. Such approval shall be based on the determination that the use is appropriate to the specific location for which it is proposed, consistent with the Comprehensive Plan, in keeping with the purpose and intent of the Ordinance. The following criteria shall be used as a guide in evaluating a proposed use: a. The presence of adjoining similar uses.
b. The presence of an adjoining district in which the use is permitted.
c. The need for the use in the area proposed, as established by the Comprehensive Plan.
d. Sufficient area to effectively screen the use from nearby different uses.
e. Conditions such that there were several potential sites for the use but not a sufficient need to establish a permitting zone district or to leave the District open to indiscriminate placement of such use.
f. Sufficient safeguards such as parking, traffic control, screening and setbacks can be effectuated to remove any potential adverse influence the use may have on adjoining uses.
g. The burden of proof shall remain with the applicant to show compliance with all standards and the burden shall never shift to the Township.
h. Applicants shall submit plot plans in sufficient detail to provide the Board and the Planning Commission with enough information to properly evaluate the proposed planned use.
Zoning Ordinance, Section 404.2 (Emphasis added).
The ZHB held a hearing on July 26, 2011. Approximately 80-100 people attended. Applicant presented the testimony of Joseph Hudak (Hudak), a licensed professional engineer. Hudak prepared the sketch plans and application. Hudak described in detail the tanks and where they would be situated on the Property. The proposed use would meet the required buffers for front, side and rear setbacks according to the Zoning Ordinance. He indicated that the Applicant "actually exceeded them for the side yards and the rear yards." Notes of Testimony, July 26, 2011, (N.T.) at 20; Reproduced Record (R.R.) at 22a. The proposed use would be surrounded by an eight-foot high chain link fence, with plastic strip shielding and barbed wire on top. N.T. at 20; R.R. at 22a. The plan was to plant ground shrubbery, and plant nondeciduous evergreen trees as a screen.
With regard to the potential for fire and explosion hazards, Hudak testified that the facility would meet all National Fire Protection Association (NFPA) requirements and other federal and state rules and regulations regarding the storage of LPG products. N.T. at 22; R.R. at 24a. Hudak opined that the proposed use was most similar to a "gasoline station" which was designated as a "conditional use" in an RC Zoning District. N.T. at 28-29; R.R. at 30a-31a. There would be no vibration or noise beyond the site boundaries. Nor would there be any smoke, odor or air pollution. He testified that the fuel tanks had adequate safety devices to prevent surface or groundwater contamination. N.T. at 25; R.R. at 27a.
On cross-examination, Hudak indicated that the nearest residence from the above-ground tank would be approximately 185 feet. N.T. at 38; R.R. at 40a. Hudak explained that the term "BLEVE" stood for boiling liquid expanding vapor explosion which could be a concern with above-ground propane tanks. N.T. at 39; R.R. at 41a. He indicated that he was not an expert on this subject and offered nothing further regarding the subject other than to indicate that Applicant was not considering burying the tank, or installing an automatic water deluge system to protect against BLEVE. N.T. at 39-40; R.R. at 41a-42a.
Applicant also presented the testimony of its Director of Operations, John Occhipiniti (Occhipiniti), who testified that Applicant had other similar facilities in Coolbaugh Township, Monroe County, Pennsylvania and in Laceyville, Pennsylvania. N.T. at 50; R.R. at 52a. Applicant never had a safety issue or issue with ground water contamination. N.T. at 51; R.R. at 53a. Occhipiniti confirmed that the facility would not be manned, however, the tanks would be equipped with electronic monitoring equipment and automatic shut-off valve in case of a leak or spill. N.T. at 67-68; R.R. at 69a-70a. He indicated that the local fire department would be trained to handle any emergencies that may occur.
Objectors also presented witnesses. The main contention of Objectors was that the proposed 185-foot setback was insufficient to protect adjacent property owners from the obvious adverse impacts of a potential explosion. They also had concerns about traffic safety issues. Richard Stryker (Stryker), a licensed professional engineer, testified that there were 150 homes within a 1, 000-foot radius of the Property. N.T. at 115; R.R. at 117a. He indicated that the nearest residence is about 200 feet from the Property. N.T. at 117; R.R. at 119a. He visited the Combined Energy Site, a similar bulk fuel storage facility located on Route 739 in neighboring Delaware Township. Stryker noted that it was not near any residential development and employees were on site to manage the facility and monitor the fuel tanks. N.T. at 119-120; R.R. at 121a-122a.
Critically, on cross-examination, Stryker agreed that the RC Zoning District was an appropriate zone for this type of use. N.T. at 133; R.R. at 135a.
Several property owners testified that they were within 300 to 1, 000 feet of the proposed facility. They objected to the location of the proposed bulk fuel transfer station based on a number of concerns in including increased tanker truck traffic, noise, decreased home values, potential dangers associated with BLEVE, water contamination, and the proximity of the propane tank to a school bus stop.
On September 29, 2011, the ZHB denied Applicant's request because Applicant:
…failed to meet its initial burden of proving that the proposed use, a bulk fuel transfer station, is a use appropriate to the specific location for which it is proposed, as required by Section 404.2 of the Ordinance. Further, the applicant has failed to meet much of the criteria set forth under Section 404.2 to be used as a guide in evaluating a proposed use.
ZHB Decision, September 29, 2011, at 12.
Specifically, the ZHB found that Applicant failed to show the presence of adjoining similar uses. It noted that there were sixteen home heating fuel delivery services operating in the area, so there was no "unmet need" for the proposed use in that specific location. It also found that there was insufficient area to effectively screen the area to reduce its adverse impact on existing adjacent residential uses. The ZHB also found that it was not possible to impose "sufficient safeguards to remove any potential adverse influence" (e.g., risk of explosion) the proposed use had on existing adjoining uses.
Applicant appealed to the trial court. No new testimony or evidence was admitted. By order dated May 24, 2012, the trial court reversed the ZHB. The trial court found that the ZHB was prohibited from setting different standards than those set by the Propane and Liquefied Petroleum Gas Act (also known as "Act 61"),  35 P.S. §§1329.1-1329.13, which contains setback and other safety requirements. Specifically, the trial court determined that "because the Gas Act [Act 61] regulations contain setback and other safety requirements, Dingman Township may not regulate these requirements by setting different requirements than the state and must let the state standards govern." Trial Court Opinion, May 24, 2012, at 6. The trial court determined that Applicant met those Section 404.2 standards which were not preempted by Act 61.
The trial court found that when the burden shifted to Objectors, they failed to present sufficient relevant evidence to negate the appropriateness of the application. The Objectors argued there were inadequate setbacks to protect adjacent property owners and the inability to reduce its adverse impacts on adjacent residential uses. As far as the adverse consequences, such as an explosion of the above-ground propane tank, the trial court found that there was a lack of testimony as to the level of risk of an ...