Friends of Lackawanna; Joseph James and Mari May; Edward and Beverly Mizanty; and Katherine Spanish and Todd Spanish, Appellants
Dunmore Borough Zoning Hearing Board and Dunmore Borough; Keystone Sanitary Landfill, Inc.; F&L Realty Corporation; F&L Realty, Inc.; Keystone Company and Keystone Landfill, Inc.
Argued: April 10, 2018
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A.
McCULLOUGH, Judge HONORABLE BONNIE BRIGANCE LEADBETTER,
zoning appeal, the Friends of Lackawanna (FOL) and individual
citizens Joseph James and Mari May, Edward and Beverly
Mizanty, and Katherine and Todd Spanish (Individual
Objectors) (collectively, Objectors) seek review of an order
of the Court of Common Pleas of Lackawanna
County (trial court) dismissing their appeal from
a decision of the Dunmore Borough (Borough) Zoning Hearing
Board (Board). The Board denied Objectors' appeal of the
Borough's Zoning Officer's preliminary opinion that a
landfill's proposed upward expansion did not violate the
applicable building height limitations in the Borough's
Zoning Ordinance (Zoning Ordinance). In particular, the Board
determined Objectors lacked standing to appeal the
Board's decision. Objectors appealed to the trial court,
which agreed with the Board on the standing issue and granted
Appellees Keystone Sanitary Landfill, Inc., F&L Realty
Corporation, F&L Realty, Inc., Keystone Company, and
Keystone Landfill, Inc.'s (collectively, Keystone) motion
to dismiss or strike Objectors' appeal. Consequently, the
trial court did not reach the merits of Objectors'
their brief to this Court, however, Objectors address both
the standing issue and the Board's decision on the
merits. In response, Keystone filed an application for relief
seeking to strike portions of Objectors' brief pertaining
to the merits of their appeal. This Court granted
Keystone's application and entered an order striking the
portion of Objector's brief, beginning at Heading B on
page 44 and continuing through page 60, pertaining to the
merits of the Board's decision. See Friends of
Lackawanna v. Dunmore Borough Zoning Hearing Bd. (Pa.
Cmwlth., No. 656 C.D. 2017, filed Oct. 16, 2017). Therefore,
our review is limited to determining whether the Board erred
in concluding that Objectors lacked the requisite standing to
appeal the Board's decision. Upon review, we reverse the
order of the trial court and remand for a decision on the
merits of Objectors' appeal.
Keystone owns and operates a 714-acre sanitary
landfill partially located in the Borough and partially
located in neighboring Throop Borough. In the Borough,
Keystone's property consists of 398 acres and is located
in an M-1 (Light Manufacturing) District. Notably, the
landfill is an existing, permitted conditional use in the M-1
District. It is regulated by the Pennsylvania Department of
Environmental Protection (DEP) pursuant to the Municipal
Waste Planning, Recycling and Waste Reduction Act (Act
and the Solid Waste Management Act (SWMA). It is currently
operating under a Phase II Major Permit Modification.
2014, Keystone submitted an application to DEP to utilize 216
acres, within the pre-existing 714-acre permit area, as a
Phase III Major Permit Modification (Phase III).
include FOL, a nonprofit corporation with a registered
business address in the Borough. FOL asserts that it has 51
Objectors are members of FOL and live in the Swinick
Development. Their properties do not border the landfill
site, but are located within a quarter-mile to a half-mile
from the landfill and approximately 3, 110 and 4, 473 feet
from the proposed expansion area. An interstate highway and
major highway interchange separate Individual Objectors'
properties from the landfill site.
November 2014, Keystone filed a request for a preliminary
opinion from the Zoning Officer pursuant to Section 916.2 of
the Municipalities Planning Code (MPC), 53 P.S.
§10916.2. Keystone requested an opinion as to
whether the proposed Phase III expansion would be in
compliance with the Zoning Ordinance. In particular, Keystone
sought an opinion as to whether the Zoning Ordinance's
building height requirements applied to the landfill.
Zoning Officer issued an opinion that Phase III would be in
compliance with the Zoning Ordinance. See Reproduced
Record (R.R.) at 120a-31a. Essentially, the Zoning Officer
reasoned that the Zoning Ordinance's definitions of
"building" and "building height" pertain
to structures with a roof supported by columns or walls.
Id. at 130a. Keystone's sanitary landfill, the
Zoning Officer observed, "lacks walls and columns, and
of particular note there is no roof." Id. Thus,
the Zoning Officer deemed the building height requirement
appealed to the Board and challenged the Zoning Officer's
opinion. Before the Board, Objectors argued that the landfill
constituted a structure under the Zoning Ordinance.
first Board hearing, Keystone moved to dismiss Objectors'
appeal on the ground that they lack standing to appeal the
Zoning Officer's preliminary opinion. The Board deferred
ruling on the motion and provided Objectors an opportunity to
present testimony and evidence on the standing issue.
Individual Objectors Joseph May, Edward Mizanty, and
Katherine Spanish, testified. Objector May testified he
resided in the Swinick Development since 1983, when he lived
with his parents. In 2008, he inherited his mother's
house, where he currently lives. May testified his residence
is on Shirley Lane, less than a quarter-mile from the
landfill. May always smells a pungent odor coming from
the landfill. R.R. at 280a-81a. May also testified as to
constant dust from the landfill in the neighborhood, and
seagull droppings all over his property. These nuisances
require constant maintenance. Id. at 286a-87a. May
also observed Borough trash trucks passing through his
development, usually on the way to the landfill. Id.
at 288a. However, May also observed dump trucks carrying
waste entering and leaving the Apex Waste Management transfer
facility, a different facility unrelated to Keystone.
Id. at 305a-06a.
Edward Mizanty owns residential property on Reeves Street in
the Swinick Development. He and his family lived there since
1989. Id. at 309a. Mizanty testified his property is
approximately a quarter-mile from the landfill.
Id. Mizanty can see the landfill from his back deck
and dining room window. Id. at 310a. He testified
that the landfill "went vertical over the years."
Id. In addition to smelling the landfill while
walking around the development, Mizanty can also smell the
landfill from the house. Id. at 312a. He described
the smell as a "pungent smell, garbage, rotting
garbage." Id. The smell is worse during the
warmer months, especially the summer. Id. The closer
he walks toward the landfill, the stronger the odor becomes.
Id. at 313a. Mizanty also testified he can see trash
trucks driving through the development. Id. at 314a.
However, Mizanty was unaware of the presence of the Apex
Waste Management transfer facility, which is located closer
to his property than the landfill. Id. at 319a.
Katherine Spanish owns residential property located on West
Swinick Drive in the Swinick Development. Id. at
411a. Spanish grew up in that house; she now lives there with
her husband and children. Id. at 412a. Spanish
estimated that her property is about a half-mile from the
landfill. Id. at 413a. When Spanish purchased
the home from her parents in 2010, her understanding was that
the landfill had 10 years remaining in its life span.
Id. at 413a-14a. Spanish testified she could smell
the landfill when she moved into the house in 2010.
Id. at 414a-17a. It is a sour pungent smell that
gets worse during the warmer months. Id.
Spanish's children attend a daycare that is even closer
to the landfill. Id. Spanish also expressed concerns
over local newspaper reports of leachate leaking from the
landfill and the possibility of subsurface mine fires and
landslides. Id. at 418a. Spanish also testified she
observed trash trucks in her neighborhood on the way to the
landfill. Id. at 419a. Spanish is also an FOL board
regard to its standing as an organization, FOL presented
testimony from Patrick Clark (FOL Witness). He identified FOL
as a nonprofit entity formed in October 2014 representing
area citizens opposed to the expansion of Keystone's
landfill. Id. at 324a. FOL Witness expressed
concerns about the Phase III expansion regarding health and
environmental issues. Id. at 327a. FOL requested air
quality tests from the Department of Health that were not
performed. Id. at 328a. FOL's concerns include
harm from leachate leakage into the groundwater and air
quality. FOL Witness testified the proposed expansion would
be detrimental to the economics of the area and the
Borough's reputation. In short, FOL Witness believed
people and businesses would not want to move to the area if
the landfill expanded. An industrial park close to the
landfill is nearly vacant. Id. at 328a.
Witness further testified that FOL met with Senator Robert
Casey, State Representative Frank A. Farina and State Senator
John Blake regarding the proposed expansion. Id. at
333a. FOL also attends DEP meetings and reviews documents and
records obtained from DEP regarding the landfill.
Id. at 334a. These documents identify the Swinick
Development as an area to be monitored for odors.
Id. at 336a.
response, Keystone presented testimony and documentary
evidence, including expert testimony from a professional
engineer, Albert J. Magnotta, III. He is Keystone's
project manager. R.R. at 442a. Magnotta calculated the
distances of Individual Objectors' homes from the
Phase III expansion area as follows: May Property - 3,
110 feet; Mizanty Property - 3, 257 feet; and, Spanish
Property - 4, 473 feet. See R.R. at 1313a.
addition, Keystone presented testimony from Benjamin Allen, a
licensed professional civil and environmental engineer. Allen
testified that Objector May could not see the landfill from
his home and that the property he identified was an
overburden pile in a mining operation adjacent to the
landfill. Id. at 488a. Keystone also presented
evidence that the majority of home construction in the
Swinick Development occurred during operation of
Keystone's landfill. Keystone argued this residential
growth, in the neighborhood where Individual Objectors
reside, belied the negative impacts they claimed.
the Board decided that Objectors lacked standing to file the
appeal. See R.R. at 61a-70a. In its decision, the
Board observed: (1) Individual Objectors do not live on or
own property abutting the landfill, and they did not
establish harm to any pecuniary interest; (2) Individual
Objectors' concerns do not rise to the level of a
substantial, direct and immediate interest required for
standing to challenge the Zoning Officer's determination;
(3) aesthetic concerns cannot be equated with a substantial
interest; (4) FOL neither owns nor leases any property in the
Borough, and it has no financial investments in the Borough;
(5) FOL is an organization specifically created to oppose and
prevent the Phase III expansion; (6) FOL failed to establish
any particular interest different from those of all citizens
in obedience to the law; and, (7) because Individual
Objectors failed to establish standing, FOL's derivative
standing argument also fails.
addition to determining Objectors lacked standing, the Board
affirmed the Zoning Officer's opinion that the Zoning
Ordinance did not impose a building height requirement on a
landfill which is neither a "building" nor a
"structure" subject to the Zoning Ordinance's
building height restrictions. See R.R. at 68a-69a.
Consequently, the Board denied Objectors' appeal by a 5-0
vote. Id. at 70a.
Objectors appealed to the trial court. They filed a 53-page
notice of land use appeal containing 377 paragraphs.
Id. at 7a-59a. This included ...