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Lackawanna v. Dunmore Borough Zoning Hearing Board

Commonwealth Court of Pennsylvania

May 7, 2018

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



          ROBERT SIMPSON, Judge

         I. Introduction

         In this 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[1] (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' appeal.

         In 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.

         II. Background

          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 101)[2] and the Solid Waste Management Act (SWMA).[3] It is currently operating under a Phase II Major Permit Modification.

         In 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).

         Objectors include FOL, a nonprofit corporation with a registered business address in the Borough. FOL asserts that it has 51 members.

         Individual 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.

          In 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.[4] 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.

         The 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 inapplicable.

         Objectors 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.

         At the 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.

         Objector 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.

         Objector 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 member. Id.

         With 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.

         FOL 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.

         In 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.

         In 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.

         Ultimately, 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.

         In 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 ...

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