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Huckleberry Assocs., Inc. v. South Whitehall Township Zoning Hearing Board

Commonwealth Court of Pennsylvania

July 15, 2015

Huckleberry Associates, Inc., Haines and Kibblehouse, Inc., and Lehigh Valley Site Contractors, Inc.
v.
South Whitehall Township Zoning Hearing Board, South Whitehall Township, Neighbor Property Owners; Appeal of: Huckleberry Associates, Inc

Argued, June 15, 2015

Appealed from No. 2013-C-4441. Common Pleas Court of the County of Lehigh. Reibman, J.

Timothy J. Siegfried, Allentown, for appellant.

Jennifer R. Alderfer, Allentown, for appellee South Whitehall Township.

Maria C. Mullane, Allentown, for appellee South Whitehall Township Zoning Hearing Board.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge (P.), HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.Judge COHN JUBELIRER did not participate in the decision in this case.

Page 1111

OPINION

ROCHELLE S. FRIEDMAN, SENIOR JUDGE

Huckleberry Associates, Inc., Haines and Kibblehouse, Inc., and Lehigh Valley Site Contractors, Inc. (together, Huckleberry) appeal from the August 26, 2014, order of the Court of Common Pleas of Lehigh County (trial court) affirming the decision of the South Whitehall Township Zoning Hearing Board (ZHB). The ZHB determined that Huckleberry's operation of a solid waste recycling facility violated the South Whitehall Township Zoning Ordinance (Ordinance) and denied Huckleberry's appeal. We affirm.

Huckleberry owns six contiguous parcels of land, comprising 63.7 acres, located at 4359 Huckleberry Road (Property) in South Whitehall Township (Township) in the rural holding zoning district (RH District). From the 1950s through 1996, Huckleberry operated a noncoal surface

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mine and quarry at the Property.[1] In July 1996, Huckleberry and the Township entered into a settlement agreement (1996 Agreement), which resolved litigation regarding the extent and legality of the mining and quarry operations at the Property. In June 2000, Huckleberry and the Township entered into another settlement agreement (2000 Agreement), which superseded the 1996 Agreement and resolved litigation regarding the Township's assessment and collection of business privilege taxes. Under the terms of the 2000 Agreement, Huckleberry discontinued mining and quarry operations; the Township absolved Huckleberry of paying business privilege taxes; Huckleberry granted the Township and its sewer authority the right to deposit clean fill on the Property; and Huckleberry granted the Township the right to temporarily stockpile leaves on the Property for a maximum of six months at a time. The Township stored leaves on the Property intermittently for 13 years.

In November 2012 and March 2013, the Pennsylvania Department of Environmental Protection (DEP) issued two permits (together, Biosoil Permits)[2] to Huckleberry, which allowed Huckleberry to construct and operate a composting and biosoil-production facility on the Property. The Biosoil Permits limited the materials that could be used in the production process to food-processing waste; pre- and post-consumer food waste; yard waste; source-separated newspaper, standard and laminated paper, and wax-coated cardboard; unpainted and untreated pallets; land-clearing and grubbing waste; and agricultural waste. The Biosoil Permits also stated that the resulting, post-production materials could be used only for or as soil additive; mulch; filter-stock media for soil erosion control; fertilizer for farming operations; and topsoil.

In March 2013, Mark Granahan, a neighboring property owner, complained to the Township that his residential property had incurred damage from stormwater runoff resulting from excavation and paving activities at the Property.[3] The Township inspected the Property in April 2013 and found that Huckleberry had paved over previously undisturbed meadow in order to ...


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