Friends of Lackawanna v. Dunmore Borough Zoning Hearing Board, 021820 PACCA, 1586 C.D. 2018

Docket Nº:1586 C.D. 2018
Opinion Judge:MARY HANNAH LEAVITT, PRESIDENT JUDGE
Party Name:Friends of Lackawanna, Joseph James and Mari May, Edward and Beverly Mizanty, and Katherine and Todd Spanish, Appellants v. Dunmore Borough Zoning Hearing Board v. Dunmore Borough, Keystone Sanitary Landfill, Inc., F&L Realty Corporation, F&L Realty, Inc., Keystone Company and Keystone Landfill, Inc.
Judge Panel:BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
Case Date:February 18, 2020
Court:Commonwealth Court of Pennsylvania
 
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Friends of Lackawanna, Joseph James and Mari May, Edward and Beverly Mizanty, and Katherine and Todd Spanish, Appellants

v.

Dunmore Borough Zoning Hearing Board

v.

Dunmore Borough, Keystone Sanitary Landfill, Inc., F&L Realty Corporation, F&L Realty, Inc., Keystone Company and Keystone Landfill, Inc.

No. 1586 C.D. 2018

Commonwealth Court of Pennsylvania

February 18, 2020

Argued: September 17, 2019

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION

MARY HANNAH LEAVITT, PRESIDENT JUDGE

The Friends of Lackawanna and individual objectors, Joseph James and Mari May, Edward and Beverly Mizanty, and Katherine and Todd Spanish (collectively, Objectors), [1] appeal an order of the Court of Common Pleas of Lackawanna County (trial court) that affirmed a decision of the Dunmore Borough Zoning Hearing Board (Zoning Board). Objectors contend that the height restrictions for buildings set forth in the Borough of Dunmore Zoning Ordinance (Zoning Ordinance)[2] apply to sanitary landfills and that the Zoning Board erred in otherwise holding. Concluding that the Zoning Board improvidently granted Objectors a hearing, we vacate the trial court's order and remand the matter to the trial court to vacate the Zoning Board's decision.

Background

Since 1972, Keystone Sanitary Landfill, Inc. (Keystone) has owned and operated a 714-acre sanitary landfill, which is divided between Dunmore Borough and neighboring Throop Borough. Keystone's landfill in Dunmore Borough consists of 398 acres in the M-1 (Light Manufacturing) District. The landfill is regulated by the Pennsylvania Department of Environmental Protection (DEP) pursuant to the Municipal Waste Planning, Recycling and Waste Reduction Act3 and the Solid Waste Management Act (SWMA).4 It currently operates under a Phase II Major Permit Modification, with an existing elevation of 1573 feet.

In 2014, Keystone submitted an application to DEP to use 216 acres within the preexisting 714-acre permit area as a Phase III Major Permit Modification (Phase III). These 216 acres are in that part of the landfill located in the M-1 District in Dunmore Borough. Under Keystone's requested permit modification, its landfill would accept new waste and excavated waste from an unlined site. Under the Phase III permit, Keystone intended to expand the landfill vertically, to a height of 1722 feet.

In November 2014, Keystone requested a preliminary opinion from the Borough's Zoning Officer on whether Phase III complied with the Zoning Ordinance.5 Keystone made this request pursuant to its "Host Municipality Fee Agreement" with Dunmore Borough, which required Keystone to "make immediate application for an opinion to the Dunmore Borough Zoning Officer under, [inter alia] 53 P.S. [§]10916.2, 6 to confirm the landfill is a pre-existing use as a landfill, as that term is defined in [the SWMA]; and is not a building under the current zoning ordinance pertaining to maximum building height." R.R. 112a-13a. The Zoning Officer responded that the terms "building" and "building height" pertain to structures with a roof supported by columns or walls. Noting that Keystone's landfill "lacks walls and columns, and of particular note there is no roof," the Zoning Officer concluded that the height requirement for buildings in the M-1 District was inapplicable to Keystone's landfill. Preliminary Opinion at 11; R.R. 1166a.

Objectors appealed the Zoning Officer's preliminary opinion to the Zoning Board, asserting that the landfill constituted a structure that was subject to the 50-foot height limitation on buildings in the M-1 District.

The Zoning Board conducted six days of hearings. Initially, Keystone moved to dismiss Objectors' appeal, asserting that they lacked standing. The Zoning Board deferred ruling on its motion, and Objectors presented evidence.

Objectors' only witness was Jeffrey Spaide, an environmental engineer who works for DEP and is assigned to the Northeast Region of the Commonwealth. In that capacity, Spaide reviews permit applications for landfills, transfer stations, incinerators and waste processing facilities. In the course of his work, Spaide visited Keystone's landfill on several occasions.

Spaide testified that Keystone's sanitary landfill was constructed using liners, anchor trenches, waste placement, gas collection systems, leachate collection systems and stormwater collection systems. There are manholes to access the landfill's leachate collection system pipes. Notes of Testimony (N.T.), 4/30/2015, at 33; R.R. 383a. These systems would be involved in the Phase III expansion. Additionally, Keystone's sanitary landfill has wells that extract gas from the landfill and pipe it to a point onsite where the gas is flared. Spaide testified that as part of each cell construction, there is a capping layer once the landfill "reaches final elevations." Id. at 28; R.R. 378a. The capping layer is similar to the liner at the bottom of the landfill.

Keystone presented testimony and documentary evidence, including expert testimony about the distances of homes from the Phase III expansion area and the extent to which residents within a three-mile radius of the landfill would be able to see the expansion. Keystone also presented testimony about landfill height and the building height restrictions in the Zoning Ordinance.

The Zoning Board determined that Objectors lacked standing to file the appeal. Nevertheless, the Zoning Board addressed the merits of Objectors' appeal.

The Zoning Board began with the definitions in the Zoning Ordinance. The term "building" is defined as "[a]ny structure having a roof supported by columns or walls, used or intended to be used for the shelter or enclosure of persons, animals, or property…." Zoning Ordinance §11.115; R.R. 862a. The term "structure" means, "[a]nything constructed or erected, the use of which requires location on the ground or attachment to something having a fixed location on the ground." Zoning Ordinance §11.201; R.R. 879a.7 The Zoning Ordinance defines "Sanitary Land Fill" as any facility devoted to the storage and/or disposal of solid wastes8 pursuant to the regulations of the Pennsylvania Department of Environmental Protection governing sanitary land fills…. Sanitary landfills shall be subject to all regulations contained herein governing earth-moving activities.

Zoning Ordinance §11.185; R.R. 875a. The Zoning Ordinance defines "building height" as follows: The vertical distance measured from the mean level of the ground surrounding the building to a point midway between the highest and lowest point of the roof, but not including chimneys, spires, towers, elevator penthouses, tanks, and similar projections.

Zoning Ordinance §11.117; R.R. 862a.

The Zoning Board held that a landfill is not a "structure" because it lacks an "attachment" or "fixed location on the...

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