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Gravel Hill Enterprises, Inc. v. Lower Mount Bethel Township Zoning Hearing Board

Commonwealth Court of Pennsylvania

October 30, 2017

Gravel Hill Enterprises, Inc.
v.
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.

          OPINION

          PATRICIA A. MCCULLOUGH, JUDGE

         William Buehler, Catherine S. Buehler, Gus Tishuk, and Arlene Tishuk (Intervenors)[1] 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).

         Facts and Procedural History

         Gravel 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.)

         The 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.

         Over the course of three hearings before the ZHB, Gravel Hill and the Township presented testimony and other evidence.[2] 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.

         On 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.)

         On 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.

         At the 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 wishes.
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 intervenors?
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, [3] 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 ...

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