Gibraltar Rock, Inc. and Sahara Sand, Inc.
New Hanover Township, Appellant
Argued May 4, 2015
Appealed fro No. 13-03847. Common Pleas Court of the County of Montgomery. Branca, J.
Robert L. Brant, Jr. and Wendy F. McKenna, Trappe, for appellant.
Stephen B. Harris, Warrington, for appellees.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge.
PATRICIA A. McCULLOUGH, JUDGE
New Hanover Township (Township) appeals from the October 3, 2014 decision of the Court of Common Pleas of Montgomery County (trial court) granting declaratory relief in favor of Gibraltar Rock, Inc., and Sahara Sand, Inc., (together, Gibraltar) and decreeing that the Township's Stormwater Management Ordinance (SMO) is preempted by the Pennsylvania Noncoal Surface Mining Conservation and Reclamation Act (Noncoal Act).,
Gibraltar owns approximately 240 acres of land in New Hanover Township, Montgomery County, and intends to operate a quarry in a Heavy Industrial (H-I) zone. More specifically, Gibraltar seeks to develop its property for a quarry, an aggregate processing facility, aggregate stockpiles, an office/scale house, a storage and parking area for machinery, an employee parking area, a loading area, a hot mix asphalt plant, and a ready mix concrete plant. (R.R. at 337a-38a.)
On April 15, 2005, the Department of Environmental Protection (DEP) issued Gibraltar a Noncoal Surface Mining Permit (Mining Permit) authorizing it to operate a quarry on the property. On June 8, 2007, the New Hanover Zoning Hearing Board granted Gibraltar a special exception, with conditions, to operate a quarry on its property and in an H-I zone. (R.R. at 338a-39a.) On appeal to this Court, we affirmed the grant of the special exception and reversed one of the conditions. See In re: Appeal of Gibraltar, (Pa. Cmwlth., No. 2287 C.D. 2011, filed October 11, 2013) (unreported).
In 2009, Gibraltar sought to activate the Mining Permit, and, on September 11, 2009, the Township filed a complaint in equity, contending that Gibraltar did not have the requisite approval. On May 17, 2010, the trial court entered an order granting the Township a preliminary injunction and enjoining Gibraltar from quarrying or mining the property pending the Township's approval of a land development application and plan. (R.R. at 339a-40a.)
Gibraltar then filed an application for land development with the Township, and, during the review process, issues related to the SMO arose. On February 20, 2013, Gibraltar filed the present declaratory judgment action in the trial court, seeking a declaration that the Township's SMO was preempted by the Noncoal Act. (R.R. at 340a.)
The parties submitted an extensive stipulation of facts, and the trial court convened a one-day bench trial. Gibraltar presented the testimony of its engineer and the DEP's district mining manager for the region, both of whom explained the process for obtaining the Mining Permit and the DEP's regulatory oversight of the quarry's operations. The Township produced its engineer, who opined that Gibraltar could comply with the requirements of both the Noncoal Act and ...