Rural Area Concerned Citizens, Inc. v. Fayette County Zoning Hearing Bd.

• Decision Date: 09 August 1994
• Citation: 646 A.2d 717,166 Pa.Cmwlth. 520
• Parties: RURAL AREA CONCERNED CITIZENS, INC., Walter D. Wiltrout and Lynn Ann Wiltrout, his wife, et al., Appellants, v. FAYETTE COUNTY ZONING HEARING BOARD. YOUGH AREA FISHERMEN'S ASSOCIATION, INC., Appellant, v. FAYETTE COUNTY ZONING HEARING BOARD.
• Court: Pennsylvania Commonwealth Court

Page 717

646 A.2d 717

166 Pa.Cmwlth. 520

RURAL AREA CONCERNED CITIZENS, INC., Walter D. Wiltrout and Lynn Ann Wiltrout, his wife, et al., Appellants, v. FAYETTE COUNTY ZONING HEARING BOARD.

YOUGH AREA FISHERMEN'S ASSOCIATION, INC., Appellant, v. FAYETTE COUNTY ZONING HEARING BOARD.

Commonwealth Court of Pennsylvania.

Argued March 2, 1994.

Decided Aug. 9, 1994.

Richard E. Bower and Michael Macko, for appellants.

Gretchen A. Mundorff, for appellee.

Before CRAIG, President Judge, and COLINS, McGINLEY, FRIEDMAN, KELLEY, and NEWMAN, JJ.

KELLEY, Judge.

Rural Area Concerned Citizens, Inc. et al., (RACC) appeals the July 29, 1993 order of the Court of Common Pleas of Fayette County (trial court) which denied RACC's motion to rule that two alternate members appointed to the Fayette County Zoning Hearing Board (ZHB) were illegally appointed ¹ and affirmed the ZHB's decision to grant the special exception requested by the Intervenor herein, MSH Enterprises (MSH). ² We affirm.

On appeal, RACC presents four issues for review by this court: the first issue is whether the ZHB had jurisdiction over MSH's request for a special exception; the second issue is whether the ZHB abused its discretion and committed an error of law in granting a special exception to MSH; the third issue is whether the two alternate members who voted in favor of the special exception granted to MSH were illegally appointed to the ZHB; the fourth issue is whether, if it is determined that the two alternate ZHB members were sleeping during the proceedings, the decision of the ZHB to grant MSH its request for a special exception must be set aside as being unfairly rendered. ³

On November 1, 1990, one alternate member was appointed to the ZHB by resolution of the Board of Fayette County Commissioners (commissioners). One more alternate member was then appointed to the ZHB by resolution of the commissioners on June 6, 1991. (Reproduced Record (R.) at 1173a-74a.) Both appointments were accomplished in compliance with the provisions of the Pennsylvania Municipalities Planning Code ⁴ (MPC) which provide for the appointment of alternate members to zoning hearing boards.

On February 5, 1991, MSH filed a petition with the ZHB requesting a special exception to operate a limestone quarry on property leased by it in Bullskin County and zoned "A-1", agricultural rural.

It was discovered at the June 12, 1991 meeting of the ZHB that only one of the three existing ZHB members would be available to consider MSH's request for a special exception. (Original Record, Meeting of Fayette County Zoning Hearing Board, dated June 12, 1991, p. 2.) The previously appointed alternate ZHB members were then designated by the chairman of the ZHB, in accordance with the MPC, to sit with the remaining regular ZHB members to create a quorum at the meetings scheduled to consider MSH's petition. Id. RACC first objected to the appointment of alternate members to the ZHB at the hearing held before the ZHB on November 9, 1991. (R. at 1101a.)

The ZHB held advertised hearings on June 20 and 21, 1991, August 23, 1991, September 16 and 30, 1991, October 28, 1991, and November 9, 1991, regarding MSH's request. (R. at 50a; 183a; 296a; 456a; 632a; 754a; and 926a respectively.)

On December 31, 1991, the ZHB granted MSH's request for a special exception and permitted MSH to operate a limestone quarry on the subject property. The ZHB made the following findings of fact:

1. Under Section 400 of the Zoning Ordinance of Fayette County, a stone quarry is permitted by "Special Exception Requiring Zoning Hearing Board Approval" in an "A-1", Agricultural-Rural Zone.

2. The subject properties are adjoining parcels with a combined total acreage of (342.5) three-hundred forty two and one-half acres situated in Bullskin Township and are zoned "A-1" Agricultural-Rural.

3. [MSH] plans to conduct a quarrying operation on an approximate (105) one-hundred five acre portion of the subject properties to extract and process Loyalhanna Limestone.

4. [MSH] plans to utilize a con-current backfilling method of quarring [sic] for the removal of the limestone from the subject properties and estimates on site time approximately (20) years.

5. [MSH] plans to extract and process between (300,000) three-hundred thousand to (500,000) five-hundred thousand tons of limestone per year, based upon a (215) two-hundred fifteen day per year operating schedule.

6. [MSH] plans to have between (30) thirty to (40) forty on-site employees, working from sunrise to sunset, Monday through Friday for operation of the proposed quarry.

7. [MSH] plans to utilize the following equipment for the extraction and processing of the limestone on the subject properties:

(2) two air track drills

(4) four haulage trucks

(2) two front end loaders

(2) two track dozers

(1) one road grader

(1) one water truck

and ancillary equipment consisting of crushers, conveyors, screens and related equipment.

8. [MSH] plans to haul from the quarry site (by contractor/owner) (105) one-hundred five truck loads of limestone per day, with each truck loaded with approximately 22) twenty-two tons; Based upon a production level of (500,000) five-hundred thousand tons per year.

9. [MSH] does not plan to conduct a retail sales operation on the subject properties.

10. [MSH] plans to ingress/egress the subject properties via T.R. 825 which intersects with S.R. 982 to the west of the site. T.R. 825 has a (10) ten ton load limit.

11. [MSH] plans to haul limestone from the site between the hours of sunrise to 7:00 a.m., 8:30 a.m. to 3:00 p.m., and 4:00 p.m. to sunset.

12. [MSH] plans to upgrade T.R. 825 to accommodate the hauling of the limestone from the subject properties.

13. [MSH] plans to construct and maintain all catch basins and retainage ponds based upon a (100) one-hundred year rainfall on the subject properties as required by the Department of Environmental Resources.

14. [MSH] does not anticipate the water supplies, streams or other water sources on or near the subject properties being adversely affected by the proposed Quarry Operation.

15. [MSH] plans to conduct blasting activities on the subject properties (1) one or (2) two times per week, in accordance with Pennsylvania Department of Environmental Resources regulations.

16. [MSH] does not anticipate the sound levels generated by the proposed Quarry Operation adversely affecting the residents of the area surrounding the subject properties.

17. [MSH] plans to take precautions to control dust and other matters relative to the quarry to maintain the air quality within acceptable levels on and around the subject properties.

(Resolution 91-9, R. at 1149a-51a, emphasis in original.)

The ZHB granted approval of the special exception, subject to the following conditions:

1. [MSH]'s proposed Quarry Operation shall not impair any water sources or supplies of the adjoining or surrounding property owners, if affected [MSH] shall replace the water supplies with ones equal in quantity and quality.

2. [MSH] shall implement whatever precautions necessary to prevent any streams or water tables on or surrounding the subject properties from being adversely affected by the proposed Quarry Operation.

(Resolution 91-9, R. at 1151a, emphasis in original.)

RACC appealed the decision of the ZHB to the trial court, which denied RACC's appeal questioning the legality of the alternate ZHB member appointments and the granting of MSH's request for a special exception. This appeal followed.

In a zoning appeal, where the trial court has not taken additional evidence, appellate review is limited to a determination of whether the ZHB committed an abuse of discretion or an error of law, and a reviewing court may not disturb the findings of the ZHB if the record indicates that its findings are supported by substantial evidence. Boundary Drive Associates v. Shrewsbury Township, 507 Pa. 481, 491 A.2d 86 (1985). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983).

RACC's first argument is that the ZHB had no jurisdiction over MSH's request for a special exception. RACC contends that the ZHB erred in finding MSH's proposed use fell under the purview of the classification which includes "sand, gravel, topsoil and other mineral extraction" found in Article IV, Section 400 of the ordinance. (R. at 17a.)

Whether a proposed use falls within a given categorization contained in the zoning regulations is a question of law, on which the ZHB's determination is subject to review. Merry v. Zoning Board of Adjustment, 406 Pa. 393, 178 A.2d 595 (1962).

MSH's operation was described through testimony presented before the ZHB as an operation which will include moving dirt with bulldozers to provide access to underlying limestone. (R. at 85a.) The exposed limestone will then be drilled, packed with explosives, and dynamited two to four times per week. (R. at 86a.) The limestone will then be extracted, crushed mechanically and removed from the site for sale. (R. at 88a-95a.)

Article IV, Section 400 of the ordinance provides that a special exception is required for "sand, gravel, topsoil and other mineral extraction" in an "A-1", agricultural rural, district. (R. at 17a.) Article IV, Section 201 of the ordinance defines mineral extraction, storage, and processing to be "any mining, quarrying, or processing of coal, limestone, clay, sand or gravel or other mineral resources for sale or otherwise used for commercial purposes." (R. at 9a.)

Due the clear language of Sections 400 and 201 and the record testimony describing the proposed use of the subject property, the ZHB properly classified MSH's operation under Section 400 of the ordinance. Accordingly, the ZHB had jurisdiction over MSH's request.

RACC's second argument is that the ZHB committed an abuse of discretion and...