Argued: November 14, 2013
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
ROBERT SIMPSON, Judge
In this case, one of two related, complex land use appeals, Tri-County Landfill, Inc. (Tri-County) asks whether the Court of Common Pleas of Mercer County (trial court) erred in denying its appeal and affirming (essentially in part) the decision of the Pine Township Zoning Hearing Board (ZHB) that denied Tri-County's numerous requests for zoning approval for its proposed landfill. Tri-County argues that, where doubt exists as to whether or not the ordinance's definition of "structure" can be read to encompass "landfills, " the trial court erred by failing to acknowledge that inherent ambiguity and by failing to interpret the Pine Township Zoning Ordinance (zoning ordinance) in favor of the landowner as the Pennsylvania Municipalities Planning Code (MPC) requires. It further asserts the trial court erred in failing to address the unconstitutional and exclusionary effect of the zoning ordinance's 40-foot height limitation. Tri-County also contends that the trial court failed to require the appropriate variances. Upon review, we affirm.
I. Factual and Procedural Background
In October 2010, Tri-County filed an application with the ZHB, seeking zoning approval for its proposed landfill. The proposed landfill site would occupy approximately 99 acres in Mercer County, approximately half of which lie in Pine Township. The remaining half would lie within Liberty Township. Tri-County's proposal for the portion of the proposed landfill that lies in Liberty Township is addressed in the separate, related appeal of Tri-County Landfill, Inc. v. Liberty Township Board of Supervisors, (Pa. Cmwlth., No. 175 C.D. 2013, filed January 9, 2014) (unreported).
Through its application to the ZHB, Tri-County sought the following alternative forms for relief: (1) an appeal from the zoning officer's denial of a certificate of use and occupancy for its "existing, " nonconforming landfill use; (2) a request for a use variance; (3) a request for a dimensional variance from the zoning ordinance's 40-foot height limitation; and, (4) a challenge to the zoning ordinance based on its alleged de facto exclusion of landfills, together with a request for site specific relief.
Numerous hearings ensued before the ZHB, including two joint hearings with the Liberty Township Board of Supervisors. In the course of the hearings before the ZHB, Tri-County amended its application to include the additional, alternative legal bases of variance by estoppel and laches.
The ZHB heard 55 hours of testimony. Witnesses for Tri-County included Ed Vogel, one of its owners, James Echard, a civil engineer, and John Blazosky, a civil and environmental engineer. Several area residents testified in opposition to the proposed landfill. Additionally, Richard Grossman, a land planning expert, and James Lawrence Hosmer, a professional engineer, testified on behalf of Objectors.
Based on the evidence presented, the ZHB issued extensive findings of fact as well as a memorandum opinion containing legal analysis and conclusions. We summarize the ZHB's findings as follows.
The zoning ordinance was first enacted on October 13, 1976 with subsequent amendments in 1984 and 1997. Since the original zoning ordinance in 1976, the property at issue here has been zoned R-1 Residential Rural. Despite 35 years of activity at this residential site since the enactment of the zoning ordinance, this is the first time any application was presented to the ZHB for any relief from the zoning ordinance.
Edward and Margaret Vogel first purchased the subject property in 1975. Since 1975, the Vogel family and its related entities (Tri-County Industries, Inc. and Tri-County Landfill, Inc.) conducted various landfill and transfer station activities at this Pine Township site. The ZHB stated it was called upon to make sense of this 35-year history of neglect of the Pine Township zoning ordinance by Tri-County, the Department of Environmental Protection (formerly the Department of Environmental Resources) (DEP) and Pine Township.
Zoning for Sanitary Landfills
Section 900 of the zoning ordinance provides for an I Industrial zoning district, the purpose of which is to provide "a Zoning District which will encourage the establishment and maintenance of industrial uses and particular business uses which will discourage the establishment of residential and other uses which are inappropriate in an Industrial Zoning District." ZHB Op., 10/29/11, Finding of Fact (F.F.) No. 8.
Section 901.1(12) (Industrial Zone) of the zoning ordinance provides for sanitary landfills, solid waste transfer stations, or similar facilities for processing and disposal of solid waste by conditional use. F.F. No. 9.
Non-conforming Use Provisions
Article XV of the zoning ordinance sets forth regulations governing non-conforming uses, structures and lots. Specifically Section 1502 of the zoning ordinance, which concerns non-conforming uses of land, states:
Where, at the effective date of adoption or amendment of this ordinance, lawful use of land exists that is made no longer permissible under the terms of this ordinance as enacted or amended, such use may be continued, so long as it remains otherwise lawful, subject to the following provisions:
1502.1 — No such non-conforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this ordinance, except as specified by Section 1500 of this ordinance.
1502.2 — No such non-conforming use shall be moved in whole or in part to any other portion of the lot or parcel occupied by such use at the effective date of adoption of amendment of this ordinance.
1502.3 — If any such non-conforming use of land ceases for any reason for a period of more than twelve (12) consecutive months, any subsequent use of such land shall conform to the regulations specified by this ordinance for the district in which such land is located.
F.F. No. 10.
Prior to the 1997 zoning ordinance amendments, Section 1502.3 stated, "if any such non-conforming use of land ceases for any reason for a period of more than thirty (30) days, any subsequent use of such land shall conform to the regulations specified by th[e] [zoning] [o]rdinance for the district in which such land is located." F.F. No. 11.
Section 400 of the zoning ordinance sets forth the permitted principal and accessory uses in the R-1 zoning district. Neither sanitary landfills nor solid waste transfer stations are permitted in the R-1 district.
Section 402.1 of the zoning ordinance provides that any building used for the storage of agricultural products or machinery is not limited in height. Section 402.2 of the zoning ordinance sets forth the maximum height requirements for the R-1 district, and it states that "principal structures shall not exceed 40 feet in height." F.F. No. 13. The storage of agricultural products and machinery is the only exception to the 40-foot height restriction in the R-1 district. Forty feet is the height restriction throughout the zoning ordinance except for a few limited exceptions set forth under Section 1402 Supplemental Height Regulations— sanitary landfills and transfer stations are not listed exceptions. Other than the storage of agricultural products and machinery and the exceptions listed in Section 1402, the zoning ordinance universally provides for a 40-foot height restriction.
Lack of Zoning Approvals
Notwithstanding the sections above concerning non-conforming uses, Tri-County expanded the landfill area over the years without zoning approval and wishes to expand again under its present application, this time with ZHB approval. Additionally, notwithstanding the section of the zoning ordinance concerning non-conforming uses, Tri-County has put in place a transfer station that is not in conformance with the R-1 district regulations, but is specifically provided for in an industrial district with approval of the local governing body. Further, notwithstanding the section of the zoning ordinance concerning non-conforming uses, Tri-County wishes to expand the area of the landfill from approximately 26 acres to a total of 94 acres.
Using a parcel of land as a dump or landfill or more modern landfill area and expansion of that use in a R-1 district requires ZHB approval, as does the use of an area in a R-1 district for a transfer station. Those activities are restricted to industrial zoning districts under the zoning ordinance.
Landfill Use at the Property and DEP Involvement
In August 1976, Tri-County Industries, Inc. and Edward and Margaret Vogel first filed an application for solid waste disposal (Phase I application) with the Department of Environmental Resources (DER, later known as DEP, and referred to as DEP throughout this opinion for clarity) seeking a permit for 90 acres on a 212-acre site. In that application, there was a section requesting information regarding zoning, and in the answers to the questions posed in the application, the applicants represented that there was no zoning ordinance and that the site was previously used for a landfill. Other questions asked whether zoning of the site permitted a sanitary landfill, and the applicants answered in the affirmative. The same section also inquired about properties within a quarter mile of the site, and the applicants responded that the properties to the north, east, south, and west were all agricultural.
Various revisions were made to the Phase I application in September 1977, but no revision was made to the zoning information even though the zoning ordinance was enacted in October 1976. In addition, a Phase II application was prepared in September 1977, and no revision was made to this application concerning zoning, nor was any approval sought from the ZHB for the landfill in a R-1 district. The 1977 application projected a total of 37, 500 tons per year and a maximum daily volume or weight of 380 cubic yards and 71 tons of weight.
DEP ultimately denied the 1976 application, and a consent order and adjudication was entered into in August 1982. The pertinent portion of that order stated that Tri-County did not presently have a permit to operate a solid waste disposal facility on its property in Mercer County. The order also stated that on December 8, 1981, DEP issued Tri-County an administrative order, requiring, among other things, phased closure of the landfill operation and submission of various plans and bonds.
Paragraph J of the 1982 consent order and adjudication stated that: "Tri-County desires to continue operating the Landfill – Old Area while [DEP] reviews additional information to be submitted by Tri-County regarding the Landfill – New Area." ZHB Mem. Op. at 7. Based upon the application and the findings in the consent order and adjudication, the ZHB stated, it appeared that Tri-County was attempting to expand operations and a non-conforming use to a new area. Pursuant to Section 1502.1 of the zoning ordinance, any such expansion required ZHB approval. The ZHB stated that a ZHB hearing at that time "would have given guidance to Vogel, Pine Township, and surrounding property owners but it did not happen—thus millions of dollars have been spent working with assumptions that may not exist." ZHB Mem. Op. at 7. "Old and new property owners have assumed they live in [a] R-1 zone and Vogel assumes they can operate and expand the landfill." Id.
The ZHB found that the only area where "landfill" operations had and were taking place through 1982 was the "old" area. F.F. No. 26. Tri-County was attempting to expand operations and its non-conforming use to a "new" area without zoning approval which, under the provisions governing the R-1 zoning district, was required. F.F. No. 27.
A new Phase I application was prepared in November 1982, which reduced the number of acres proposed for a permit from 90 acres of a 212 acre site to 49.2 acres of the 212 acre site, including both new and old areas. In this phase of the application, the zoning issue was not discussed, nor was any application made to the ZHB for any relief on this R-1 site for expansion of a nonconforming use.
A Phase II application was prepared in April 1983, and revised in March 1984, requesting approval for a maximum daily volume or weight of 1000 cubic yards per day as opposed to a maximum of 380 cubic yards on the 1977 application. A narrative report accompanying the Phase II application indicated the "old area" as approximately 19 acres and the "new area" as a 30-acre landfill. F.F. No. 30. Therefore, the ZHB stated, the total area for the disposal of waste until March 1984 could be no more than 19.2 acres because the new area was never approved or used prior to that time. "Therefore, the largest disposal area that could be 'grandfathered' in 1983 was 19.2 acres." ZHB Mem. Op. at 8. At this time, the ZHB explained, there was still no application to the ZHB for any relief under the zoning ordinance based on the new applications in 1982 and 1983. "This appears to be an expansion of a non-conforming use in [a] R-1 zone." Id.
DEP issued Tri-County Industries a permit in September 1985, based on Phase I and Phase II design reports and drawings submitted by Todd Giddings and Associates from 1983 to 1985. The permit itself does not state the exact size of the area under permit. However, the design reports and drawings submitted by Todd Giddings and Associates indicate that the area at issue consisted of the 49.2-acre area referenced above, which included the "old" and "new" area. F.F. No. 36.
Vogel renewed landfill operations in 1985 based on the DEP permit issued in September 1985. Disposal of waste was continued in the "old area" and expanded into the new area based on the permit, despite the facts that no request was submitted to the ZHB for expansion of a non-conforming use and that the zoning ordinance was in place for over nine years.
Prior to 1985, disposal of waste only occurred on approximately 19.2 acres of the "old area." F.F. No. 39. Any expansion of the disposal of waste beyond the 19.2 acres of the "old area" required ZHB approval based on the zoning ordinance in effect at that time. F.F. No. 40.
New municipal waste management regulations were published in the Pennsylvania Bulletin in April 1988. These required, among other things, that landfills meet new standards, including the use of sophisticated liners under the refuse.
1990 Cessation of Landfill Activities
After various administrative proceedings, a consent order and adjudication was entered into in April 1990, which required Tri-County Industries, Inc. to cease accepting municipal waste at the landfill as of September 1, 1990. F.F. No. 42. There has not been any landfill operation on the subject property since September 1, 1990. ZHB Mem Op. at 8.
On September 10, 1990, Attorney Ronald L. Kuis of Kirkpatrick & Lockhart wrote to DEP and represented to the DEP on behalf of Tri-County Industries, as follows:
I. Closure at Tri-County. Under separate cover, Harald Pedersen will provide to [DEP] a revised closure plan covering the Tri-County landfill. For your information, this closure plan will identify approximately four to five acres of the landfill that will be closed pursuant to current Pennsylvania regulations. This acreage represents the area in which municipal waste has been place [sic] since April 8, 1988. Previous closure plans provided to [DEP] for Tri-County were based on assumptions regarding continued future use at this site. Accordingly, those closure plans previously submitted by Tri-County no longer are applicable. Because of the change in acreage, it will be necessary to revise both the bonding amounts for Tri-County, as well as the designated area subject to closure.
II. Operation and Closure at Vogel Disposal (language not applicable to this case …[)]
The closing paragraphs provide:
At this time, we see no legal duty to close landfill acreage that was subject to disposal and closure activities prior to April 8, 1988. Acreage at both Tri-County and at Vogel Disposal that received waste prior to April 8, 1988, has been closed subject to earlier requirements of [DEP] or the Bureau of Mines. The amended closure plans to be provided by Mr. Pedersen will clarify the affected acreage and the schedules to be followed pursuant to those plans.
Because of the change in business planning brought about by the permit denials issued by [DEP], both Tri-County and Vogel Disposal will be proceeding with operations in a manner different from that originally expected. Both parties are willing to meet with [DEP] and its representatives to discuss any of the foregoing.
F.F. No. 43. With regard to the purpose of this letter, the ZHB explained:
It appears the intention of the letter was to formalize with [DEP] that Tri-County was not going to do anything further with the old area and they were attempting to minimize the acreage in the new area that would require closure. The letter certainly indicates that they were going to close the operation at Tri-County and they were going to operate and close portions of Vogel Disposal at Seneca.
ZHB Mem. Op. at 9.
In November 1990, Tri-County Industries, Inc. and DEP entered into another settlement agreement, which in addition to providing for closure procedures for the landfill, stated that DEP agreed to:
… recalculate the bond required for closure based on the actual acreage affected and other factors primarily related to the cost of soil used for final cover. The parties agree that the acreage affected is 6.7 acres rather than 12.4 acres and that the bond requirement is 704, 000 dollars rather than 2.1 million dollars. [DEP] amended the Closure order on November 15, 1990 to reflect these changes.
Paragraph 1 of this same Order provided that:
Upon approval of this Settlement Agreement by the [Environmental Hearing] Board [(Board)], Tri-County's appeal at Board Docket No. 90-215-E shall be discontinued and terminated with prejudice.
Paragraph 8 of this same Order provided that:
The Amended Closure Order shall terminate if [DEP] should issue a permit under the new municipal waste regulations to reopen and operate the Landfill.
F.F. No. 44. The November 1990 Settlement Agreement also provided:
3. The Amended Closure Order is modified as follows:
a. Paragraph 1 'The Closure Plan submitted March 30, 1990, as revised April 9, April 24, 1990, including [DEP's] letter of October 30, 1990, (relating to groundwater monitoring requirements) is incorporated by reference herein as an obligation of this Order as if set forth at length. Tri-County shall begin implementation of the approved closure plan in accordance with the schedule of implementation UPON THE DENIAL OF TRI-COUNTY'S REPERMITTING APPLICATION and proceed to properly cap 6.7 acres of the Landfill in accordance with the requirements of 25 Pa. Code § 273.234 using a synthetic cap as specified in the Closure Plan, ' IF TRI-COUNTY FAILS TO SUBMIT A REPERMITTING APPLICATION BY FEBRUARY 1, 1991 TRI-COUNTY SHALL BEGIN IMPLEMENTATION OF THE CLOSURE PLAN BY FEBRUARY 1, 1991. (Emphasis added by Tri-County)
F.F. No. 45. Tri-County Industries did not appeal this settlement agreement, nor did Tri-County Industries apply for a new permit or submit any application to DEP. F.F. No. 46.
On February 1, 1991, Tri-County Landfill, Inc. (presumably a new entity) submitted a letter to DEP's Bureau of Waste Management indicating that Tri-County Landfill, Inc. was submitting for its review, a Phase I and Phase II application for permit modification and indicating Tri-County Landfill, Inc. was substituting itself for the former corporation in requesting a permit.
Tri-County Landfill, Inc. was not incorporated until May 1991. As such, the ZHB stated, "the February 1, 1991 application was submitted by a nonexistent company with no legal ability to do anything." F.F. No. 48. Thus, the ZHB stated, Tri-County did not meet the requirements of the November 1990 settlement agreement.
1990 Opening of Transfer Station
In September 1990, DEP issued Tri-County Landfill, Inc. an emergency permit for a transfer station, which provided, among other things:
3. Municipal waste may only be received at the Emergency Transfer Station from those counties which have been previously disposing at the landfill. These include Butler, Clarion, Crawford, Lawrence, Mercer, and Venango counties.
4.The operator may not allow municipal waste to remain at the Emergency Transfer Station at the end of the day. For this purpose, the end of the day shall be 9:00 p.m.
F.F. No. 51.
In February 1992, Tri-County Landfill, Inc. was issued a permit (as opposed to the previously issued emergency permit) for the operation of a transfer station along with amendments to the permit by virtue of a settlement agreement executed in July 1992.
The ZHB explained that a solid waste transfer station is a separate and distinct entity from a sanitary landfill and is recognized as such under Section 901.1(12) of the zoning ordinance and by DEP. Tri-County Landfill, Inc. has a permit for a transfer station but not a landfill. F.F. No. 53. A solid waste transfer station is only permitted in an industrial zone, and then only with approval by the local governing body. The ZHB found that a transfer station never existed on this property prior to 1990. F.F. No. 55.
Further, the ZHB found, since September 1990, Tri-County Landfill, Inc. continuously operated a transfer station on the property, expanded buildings and operations, constructed a new road to the transfer station and generally operated in the R-1 district as if it had approval to operate in an industrial district. F.F. No. 57.
The ZHB found that Pine Township was aware of the activities at the subject property and did not stop any expansion of the transfer station or require Tri-County Landfill, Inc. to obtain any relief from the R-1 district regulations. F.F. No. 58.
In 1994, Edward and Margaret Vogel transferred 94 acres of the 212-acre site to Tri-County Landfill, Inc. The transfer station itself, along with a few acres, remained in the Vogels' possession. The Vogel family or related entities under their control, own approximately 500 acres, which includes the Tri-County Landfill, Inc. site, the transfer station and surrounding properties.
The ZHB found that the total prior "disposal area" is approximately 26 acres which includes the 19.2 acres of "old area" and 6.7 acres of "new area, " which was required to be closed under the 1990 consent agreements. F.F. No. 62. The ZHB stated this area constitutes approximately 5% of the ...