Peifer v. Colerain Twp. Zoning Hearing Bd.
| Docket Number | 31 C.D. 2023 |
| Decision Date | 12 July 2023 |
| Parties | Dwayne A. Peifer and D&K Living Trust v. Colerain Township Zoning Hearing Board v. Colerain Township Appeal of: Chester Water Authority |
| Court | Pennsylvania Commonwealth Court |
Chester Water Authority (CWA) appeals from an order of the Court of Common Pleas of Lancaster County denying CWA's application for leave to intervene in a land use appeal filed by Dwayne A. Peifer and D&K Living Trust[1](collectively Peifer).[2] Also before the Court is Peifer's application to quash the instant appeal as interlocutory.[3] We deny Peifer's application to quash the instant appeal and reverse the trial court's order denying CWA's application for leave to intervene.
In 2021, Peifer filed an application for a special exception to operate a concentrated animal feeding operation (CAFO), specifically an industrial duck farm, in Colerain Township's agricultural zoning district. Comprising approximately sixty acres, the subject property is located at 510 Mt. Eden Road, Kirkwood, Pennsylvania. The property is enrolled in the Township's agricultural security area and is permanently preserved as a farm through a conservation easement.
The proposed duck barn would measure 63 feet in width by 640 feet in length, would be located at least 75 feet from any property line, and would house approximately 40,000 ducks at its maximum capacity.[4] The ducks' daily average water consumption would be approximately 3500 gallons, which equates to a well producing 2.43 gallons per minute and is comparable to approximately 9 single-family homes. (F.F. No. 31.) Every month, one truck would deliver baby ducks. (F.F. No. 30.) Every four weeks, there would be four tractortrailer trucks that would load ducks and transport them to Harrisburg for processing. There also would be feed trucks entering and exiting the property. (Id.) "Mortalities [would] be handled using an industry standard incinerator system." (F.F. No. 32.)
The duck manure would be scraped to a point where it would be conveyed underground to an outside concrete manure storage structure, measuring 105 feet in diameter and 16 feet deep, that would be located at least 200 feet from any property line. (F.F. Nos. 8, 10, 15, and 17.) Although the capacity for the manure structure would be approximately 971,600 gallons, the annual manure generated would be approximately only 483,000 gallons. (F.F. Nos. 10 and 11.) The structure would be pumped out in the spring and fall, with the wet manure applied two times per year as a natural fertilizer to the surface of the land in accordance with Peifer's nutrient management plan. (F.F. Nos. 13, 20, and 21.) The manure would be applied at approximately 4000 gallons per acre and would not be spread within 100 feet of any well or stream. (F.F. Nos. 18 and 19.) "In order to help mitigate odors associated with the storage and land application of manure, a natural enzyme called 'pit king' [would] be added to the manure in the manure storage structure." (F.F. No. 14.)
As for CWA's interest, the proposed duck farm is in close proximity to CWA's Octoraro Reservoir providing drinking water to the City of Chester, Southern Chester County, and Western Delaware County. (F.F. No. 38.) CWA also owns property across from the subject property. (Dec. 8, 2022, Trial Ct. Op. at 8.) Appearing before the ZHB, a representative for CWA submitted a lengthy letter from CWA's chief operations officer and facilities supervisor copiously outlining why CWA believed that the ZHB should deny Peifer's application for a special exception and stating that "CWA is a person affected by the application . . . and requests recognition as a party in this proceeding." (Aug. 11, 2021 Hr'g, CWA Ex. J; Reproduced Record "R.R." at 369a.) The representative offered to read the letter into the record but the ZHB's counsel stated that the ZHB had the letter and requested that it be marked and made part of the record. He further stated that the representative could pass it out to community members present at the hearing. (Id., Notes of Testimony "N.T." at 77; R.R. at 298a.) It does not appear that the ZHB acted on CWA's request to be accorded party status.
In a September 2021 written decision denying Peifer's application, the ZHB concluded that the subject property was not an appropriate location for the proposed use. The ZHB found that the proposed duck barn would be located in close vicinity to a number of neighboring residences and on land sloping to nearby Gables Run, which flows to Octoraro Reservoir. (F.F. Nos. 33 and 37.) In addition, the ZHB determined that the proposed use would adversely affect the zoning district because the odor associated with manure and the spreading thereof would adversely affect the neighboring property owners as well as substantially injure or detract from the use of neighboring properties and from the character of the neighborhood. (F.F. Nos. 34 and 35.) Finally, the ZHB concluded that Peifer failed to prove that the proposed use would be safely operated and that the neighboring properties would be safeguarded from stormwater runoff and pollution. (F.F. No. 39.)
Peifer appealed and the Township filed a praecipe for intervention as of right to represent the ZHB. In November 2021, CWA filed an application for leave to intervene in Peifer's land use appeal. Ultimately, the trial court denied CWA's application and ruled that the Township and the ZHB could adequately represent CWA's interests. In January 2023, CWA appealed from the trial court's order denying CWA's application for leave to intervene. In March 2023, Peifer filed an application to quash CWA's appeal as interlocutory. At this time, we consider both the merits of the appeal and Peifer's application to quash.
An order denying the right to intervene is no longer deemed a final order under Pennsylvania Rule of Appellate Procedure 341. Fayette Cnty. Off. of Plan., Zoning &Cmty. Dev. v. Fayette Cnty. Zoning Hearing Bd., 981 A.2d 336, 340 (Pa. Cmwlth. 2009). However, an appeal may be taken as of right from a trial court's collateral order. Pa.R.A.P. 313(a). A collateral order is defined as "an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost." Pa.R.A.P. 313(b). All three criteria must be satisfied in order for the doctrine to apply and the doctrine must be narrowly construed in order to avoid piecemeal determinations and protracted litigation. Commonwealth v. Blystone, 119 A.3d 306, 312 (Pa. 2015). Peifer concedes that the first criterion for application of the collateral order doctrine is satisfied but argues that CWA cannot meet the second and third criteria.
The second criterion requires that the right involved be too important to be denied review. CWA is both an adjacent landowner and the owner of the directly affected Octoraro Reservoir. As the trial court concluded, CWA established a "legally enforceable interest" under Pennsylvania Rule of Civil Procedure 2327(4) setting forth who may intervene. Pennsylvania courts have long recognized that property owners in the immediate vicinity of property involved in zoning litigation have the requisite interest to become intervenors. Wexford Sci. and Tech., LLC v. City of Pittsburgh Zoning Bd. of Adjustment, 260 A.3d 316, 325-26 (Pa. Cmwlth. 2021); Twp. of Radnor v. Radnor Recreational, LLC., 859 A.2d 1, 5 (Pa. Cmwlth. 2004); Larock v. Sugarloaf Twp. Zoning Hearing Bd., 740 A.2d 308 (Pa. Cmwlth. 1999); Summit Twp. Taxpayers Ass'n v. Summit Twp. Bd. of Supervisors, 411 A.2d 1263, 1265 (Pa. Cmwlth. 1980); Schatz v. Zoning Hearing Bd. of Upper Dublin Twp., 343 A.2d 90, 91-92 (Pa. Cmwlth. 1975). In this respect, we reject Peifer's argument that CWA, as an adjacent property owner, had to articulate a legally enforceable interest for intervention that may be affected by Peifer's land use appeal. The law provides that a property owner's proximity to the subject property is sufficient to afford it standing to appeal without any necessity for that owner to declare any plans for its adjacent property.
Pa. Const. art. I, § 27 (emphasis added). The ERA imposes fiduciary duties on the Commonwealth and all state, county and local agencies, including CWA, "to prevent and remedy the degradation, diminution, or depletion of our public natural resources." Pa. Env't Def. Found. v. Commonwealth, 161 A.3d 911, 932 (Pa. 2017).
However Peifer asserts that CWA's purported interest in protecting its water supply is not too important to be denied review because it is obviated by the Commonwealth's comprehensive regulation of the proposed use for the specific purpose of protecting ground and surface water as well as other environmental resources. ...
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