Stat v. Kennett Township Zoning Hearing Board, 110719 PACCA, 888 C.D. 2018

Docket Nº:888 C.D. 2018
Party Name:Richard Stat and Randall F. Bishop, Appellants v. Kennett Township Zoning Hearing Board
Case Date:November 07, 2019
Court:Commonwealth Court of Pennsylvania

Richard Stat and Randall F. Bishop, Appellants


Kennett Township Zoning Hearing Board

No. 888 C.D. 2018

Commonwealth Court of Pennsylvania

November 7, 2019


Argued: September 9, 2019




Richard Stat and Randall F. Bishop (Objectors)[1] appeal from the May 29, 2018 Order of the Court of Common Pleas of Chester County (common pleas) that denied Objectors' appeal from the Decision of the Kennett Township Zoning Hearing Board (Board) and affirmed the Board's grant of a dimensional variance to Chester Water Authority (Authority). On appeal, Objectors argue that the Board erred or abused its discretion in: not finding that the Authority's proposed use required a special exception or conditional use permit; applying the wrong legal standard in approving the dimensional variance; and granting the dimensional variance where the Authority had not met its burden of proving its entitlement to that relief.2

I. Background

A. Facts

The Authority is a municipal authority organized under the Municipality Authorities Act3 and is responsible for providing public water services to governmental units and individuals in Delaware and Chester Counties. The Authority owns a 5.4-acre property (Property) located in the SA-Specialized Agricultural District (SA district) in Kennett Township (Township). It has operated facilities on the Property since 1975, when it received a special exception from the Board to construct a pumping station. (Reproduced Record (R.R.) at 196a-201a.) That special exception was necessary because the "pumping station" use was not set forth in the Township Zoning Ordinance (Ordinance), [4] but the Ordinance did allow for a "public water supply"[5] use as of right. (Id. at 48a.) In 1989, the Authority received approval to add a water storage tank and distribution system booster station, with generator, to the Property. (Id. at 202a-05a.) The Authority's neighbors in the SA district are primarily mushroom houses, but Mr. Bishop's residential property is immediately adjacent to the Property. Pursuant to the Ordinance, mushroom farms and greenhouses in the SA district are permitted 70 percent impervious lot coverage, but other uses in that district, including the Authority's use, are limited to 20-percent impervious lot coverage.

At issue is an application the Authority filed with the Board to expand its facilities on the Property to include a 1.5-million-gallon storage tank, a bulk water filling station, an emergency generator, an enclosed garage for Authority vehicles, a fuel filling station, and a two-story office building. The Authority initially sought a special exception in addition to a dimensional variance from the 20-percent lot coverage restriction. Following a description, at a hearing, of the Authority's historic and preexisting use of the Property and the 1975 and 1989 approvals of that use, Township's Zoning Officer stated that the proposed use did not require a special exception, and the Authority withdrew its special exception request. (Id. at 47a-51a.) Thus, the only part of the application that remained before the Board was the dimensional variance request. The variance was required because the proposed plans would result in lot coverage of 26.43 percent, which would "slightly exceed the maximum lot coverage permitted in the SA . . . [d]istrict." (Application, R.R. at 7a.)

The Authority presented the testimony of its Executive Manager (Manager) and its Engineer, as well as an Outside Engineer, who explained the Authority's purpose, its current use of the Property, the proposed plan, and why the expansion and dimensional variances were needed. Based on that testimony, the Board made the following findings of fact.

The Authority serves 13 communities and provides wholesale water service to 7 customers, with a total of 65, 000 properties served. The Authority's existing facilities on the Property serve about 2100 customers in 3 municipalities, including Township, and provide wholesale water to the Borough of Kennett Square (Borough). The new water storage tank would be 35 feet high, painted, and located on the portion of the Property that is adjacent to mushroom farms. That tank is needed to satisfy current customer requirements, to serve the anticipated population growth in the service area, to have an emergency backup system, and to provide water for local firefighting services. The "tank will better serve to provide water for three days in the event there is an interruption in the water main" that bisects the Property. (Board Decision, Finding of Fact (FOF) ¶ 16.) The proposed bulk water filling station is designed, primarily, to fill fire company tankers, but is also available to others that may need bulk water. The new emergency generator is intended to support the existing pump station, would be operated by propane, and would be "housed in an acoustic enclosure with a critical grade silencer muffler." (Id. ¶ 21.) The only sound that would emanate from that enclosure would be similar to that of a dishwasher.

The Authority proposed to close its current leased office space, located in the Borough, and open an office on the Property. That office would be staffed by two employees from 9:00 a.m. to 5:00 p.m., who would accept customer payments and process new applications. The Authority estimated that 20 to 25 customers would use the office a week. The second story of the office would "be used for emergency operations for disaster events." (Id. ¶ 19.) The proposed enclosed parking garage would be used to park a portion of the Authority's service vehicles, all of which are currently located in the City of Chester (Chester). Those vehicles would be used by Authority employees, who would come to the Property in their personal vehicles, park, take the Authority vehicles to attend to their duties, and then return at the end of the day. The Authority needs to have vehicles on the Property to improve its response time, which, currently, is between 45 minutes to 1 hour due to the vehicles' location in Chester. The proposed fueling station would be a more efficient means of fueling the Authority's vehicles and would receive fuel deliveries every six to eight weeks.

The Authority anticipated construction of the facilities would occur over three to four years in order to reduce the costs to its water customers. The Board noted the Authority's concession that there were sight distance issues with the current plan, and that the Authority still would have to obtain land development approval, which would require the Authority to meet the Subdivision and Land Development Ordinance's requirements, including landscaping of the existing and proposed facilities. Township's Board of Supervisors was in favor of the proposed plan.

Objectors, who were granted party status by the Board, and others, questioned the Authority's witnesses and provided their own testimony. Objectors' complaints focused on the plan's visual appearance, the potential increase in traffic and noise, and the increase in the number of activities on the Property. The current stormwater management basin drains onto Mr. Bishop's property, which he believed was causing erosion. Mr. Bishop also objected to how close the existing storage tank was to his property. Mr. Stat questioned the withdrawal of the special exception request, contending that the proposed use was different from the current use. However, Mr. Stat was advised this issue was no longer before the Board because the special exception request had been withdrawn.

B. The Board's Decision

Based on the above findings of fact and its interpretation of the Ordinance, the Board held that the Authority had met the requirements for obtaining a variance, noting that the Authority was requesting a "hybrid variance which require[d] a less strict compliance with the variance standards of the [Ordinance] and the Pennsylvania Municipalities Planning Code"6 (MPC). (Board Decision at 8 (citing Pohlig Builders, LLC v. Zoning Hearing Bd. of Schuylkill Twp., 25 A.3d 1260 (Pa. Cmwlth. 2011)).) The Board concluded that the Authority's additions to its "municipal authority use on the Property" were necessary to allow the Authority "to provide a better level of service and an adequate supply of potable water to the public, to fire companies, and continuity of supply in the event of an emergency." (Id.) According to the Board, the existing and proposed facilities were "integral parts of the Authority's public water service operations." (FOF ¶ 31.) The Board gave "great weight" to the public service component of the Authority's operations in its consideration of the variance...

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