Gravel Hill Enterprises, Inc.
Lower Mount Bethel Township Zoning Hearing Board, Lower Mount Bethel Township, William S. Buehler, Catherine S. Buehler, Gus Tishuk, and Arlene Tishuk Appeal of: William S. Buehler, Catherine S. Buehler, Gus Tishuk, and Arlene Tishuk
Argued: September 13, 2017
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,
HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE
ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge,
HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H.
WOJCIK, Judge, HONORABLE JOSEPH M. COSGROVE, Judge.
PATRICIA A. MCCULLOUGH, JUDGE
Buehler, Catherine S. Buehler, Gus Tishuk, and Arlene Tishuk
(Intervenors) appeal from the November 20, 2015 order of
the Court of Common Pleas of Northampton County (trial
court), which approved and adopted a land use settlement
agreement between Lower Mount Bethel Township (Township) and
Gravel Hill Enterprises, Inc. (Gravel Hill).
and Procedural History
Hill purchased land located at 10143 Gravel Hill Road,
Bangor, Lower Mount Bethel Township, Northampton County,
Pennsylvania (the Property) at a Federal Marshal's sale
in 2008 after the previous owner defaulted on a federal loan.
The Property is approximately 126 acres, and approximately
55.5 acres are covered with piles of stumps and other
wood-waste debris, including some materials that would be
considered hazardous waste. On or about September 3, 2014,
Gravel Hill filed an application with the Township Zoning
Hearing Board (ZHB), seeking a variance to permit the
operation of a stump shredder and grinder to produce mulch
and top soil. At the time of the application, the Property
was subject to a Department of Environmental Protection (DEP)
order issued December 31, 1999, requiring the Property's
previous owner to, inter alia, cease the
transportation, dumping, disposal, and burning of debris on
the Property and remove all debris from the Property at a
rate of 4, 000 cubic yards per week. (Reproduced Record
(R.R.) at 138a-49a.)
Property's previous owner operated a stump grinding
business and had initially received a variance permitting the
use of the Property for the same. The variance was
subsequently vacated; however, the previous owner continued
to operate the business for a number of years. During the
unauthorized operation, the previous owner received a
substantial amount of material for disposal, but very little
material was processed and manufactured to product. Moreover,
a number of fires occurred on the Property because of the
large amount of material stored thereon. The Property is
located in the Township's Agricultural Zoning District,
which does not permit the proposed use.
the course of three hearings before the ZHB, Gravel Hill and
the Township presented testimony and other
evidence. Intervenors and several other neighboring
property owners appeared at the hearings to oppose Gravel
Hill's application for a variance, citing concerns
regarding truck traffic, noise, declining property values,
and other problems that existed under the Property's
previous owner. The ZHB denied Gravel Hill's application,
reasoning that the proposed use would be detrimental to the
public welfare, have an adverse impact on the essential
character of the neighborhood, and did not constitute the
minimum variance that would afford relief.
December 15, 2014, Gravel Hill filed an appeal with the trial
court and, on December 23, 2014, the Township filed a notice
of intervention. After oral argument was conducted on May 26,
2015, the parties consented to the trial court delaying
issuance of a decision to allow the parties to engage in
settlement discussions. The trial court held settlement
conferences on June 25, 2015, and October 1, 2015. In the
meantime, Intervenors attended meetings of the Township's
Board of Supervisors (Board) on August 3, 2015, and August
17, 2015, where attendees were advised that an appeal from
the ZHB's decision was pending and settlement
negotiations with Gravel Hill were ongoing. According to
Intervenors, statements made at these meetings alerted them
to the possibility that the Township could change its
position during the negotiations and agree to conditions
regarding the use of the Property that they considered
unacceptable. (R.R. at 366a-67a, 559a, 1190a-91a.)
September 8, 2015, Intervenors filed a petition to intervene
with the trial court. Gravel Hill filed an answer opposing
Intervenors' petition, asserting that their petition was
untimely because it was filed approximately nine months after
the appeal was filed, Intervenors' interests were
adequately represented by the Township, and granting
Intervenors' petition would unduly delay resolution of
the matter. The trial court scheduled a hearing on
Intervenors' petition for October 30, 2015.
hearing, Gary Asteak, counsel for Gravel Hill, advised the
trial court that it had generated a draft settlement
agreement (the settlement agreement) with the Township
pending official Township approval at a public meeting.
Additionally, the parties requested a brief conference with
Intervenors' counsel to discuss Intervenors' petition
to intervene. After the conference, the parties advised the
trial court that they had reached an agreement (the
stipulation) regarding Intervenors' petition.
Specifically, the parties articulated their stipulation on
the record as follows:
MR. ASTEAK: Your honor, we've reached an agreement, I
believe. And this is what we submit to the Court. Gravel Hill
withdraws its objection to the petition for intervention.
Gravel Hill shall provide the intervenors forthwith with a
copy of the proposed -- the draft settlement agreement and
will provide or share a copy with the Court if the Court
The parties agree that as a matter of law, the Court would be
empowered to approve or reject any settlement agreement
notwithstanding any positions taken by the intervenors. And
the intervenors will be given an opportunity to provide
comment on the settlement agreement.
THE COURT: Is that it?
MR. ASTEAK: That's it.
THE COURT: What do you mean, the Court can approve or reject
the settlement notwithstanding objections from the
MR. ASTEAK: Means that the intervenors do not have veto power
over the settlement agreement.
THE COURT: Really?
MR. C. ELLIOTT: Yes.
MR. ASTEAK: They're empowered to provide the Court with
whatever comment they wish with regard to the agreement
itself. That is our understanding.
* * *
THE COURT: Mr. Elliott and Mr. Elliott,  you heard
everything that Mr. Asteak has placed on the record. So just
for my own understanding, the objection to the petition to
intervene is withdrawn. So I'm going to grant the
petition to intervene. That is the number one first thing.
MR. ASTEAK: That's correct.
MR. C. ELLIOTT: That's our understanding, Your Honor, if
the township votes.
THE COURT: If the township votes on Monday to approve the
settlement, even if your clients oppose it, I can approve or
reject the settlement and bind your clients; is that correct?
MR. C. ELLIOTT: Yes, Your Honor. It's our understanding
we will be able to both participate in the public hearing
process before the township but also to make our views known
to the Court. Under the stipulation, the Court has the
authority to either accept or reject the agreement. But I
think at the bottom, we would need to sway the Court that the
agreement should not be approved for whatever reasons we
would articulate. Ultimately, the ...