Tri-County Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., & Dr. Ray Yourd, Diana Hardisky, Eric Lindh & Polly Lindh, Bill Pritchard & Lisa Pritchard, Dave Dayton & Anne Dayton, Doug Bashline & the Grove City Factory Shops Ltd.

• Decision Date: 09 January 2014
• Citation: 83 A.3d 488
• Court: Pennsylvania Commonwealth Court
• Parties: TRI–COUNTY LANDFILL, INC., Appellant v. PINE TOWNSHIP ZONING HEARING BOARD, and Dr. Ray Yourd, Diana Hardisky, Eric Lindh and Polly Lindh, Bill Pritchard and Lisa Pritchard, Dave Dayton and Anne Dayton, Doug Bashline and The Grove City Factory Shops Limited Partnership.

83 A.3d 488

TRI–COUNTY LANDFILL, INC., Appellant

v.PINE TOWNSHIP ZONING HEARING BOARD, and Dr. Ray Yourd, Diana Hardisky, Eric Lindh and Polly Lindh, Bill Pritchard and Lisa Pritchard, Dave Dayton and Anne Dayton, Doug Bashline and The Grove City Factory Shops Limited Partnership.

Commonwealth Court of Pennsylvania.

Argued Nov. 14, 2013.

Decided Jan. 9, 2014.

Clifford B. Levine, Pittsburgh, for appellant.

Robert B. McKinstry, Jr., Philadelphia, for appellee The Grove City Factory Shops Limited Partnership.

Charles M. Means, Pittsburgh, for appellees Pine Township and Pine Township Zoning Hearing Board.

BEFORE: McGINLEY, Judge, and COHN JUBELIRER, Judge, and SIMPSON, Judge.

OPINION BY Judge SIMPSON.

In this case, one of two related, complex land use appeals, Tri–County Landfill, Inc. (Tri–County) asks whether the Court of Common Pleas of Mercer County (trial court) erred in denying its appeal and affirming (essentially in part) the decision of the Pine Township Zoning Hearing Board (ZHB) that denied Tri–County's numerous requests for zoning approval for its proposed landfill. Tri–County argues that, where doubt exists as to whether or not the ordinance's definition of “structure” can be read to encompass “landfills,” the trial court erred by failing to acknowledge that inherent ambiguity and by failing to interpret the Pine Township Zoning Ordinance (zoning ordinance) in favor of the landowner as the Pennsylvania Municipalities Planning Code ¹ (MPC) requires. It further asserts the trial court erred in failing to address the unconstitutional and exclusionary effect of the zoning ordinance's 40–foot height limitation. Tri–County also contends that the trial court failed to require the appropriate variances. Upon review, we affirm.

I. Factual and Procedural Background

In October 2010, Tri–County filed an application with the ZHB, seeking zoning approval for its proposed landfill. The proposed landfill site would occupy approximately 99 acres in Mercer County, approximately half of which lie in Pine Township. The remaining half would lie within Liberty Township. Tri–County's proposal for the portion of the proposed landfill that lies in Liberty Township is addressed in the separate, related appeal of Tri–County Landfill, Inc. v. Liberty Township Board of Supervisors, 2014 WL 97316 (Pa.Cmwlth., No. 175 C.D.2013, filed January 9, 2014) (unreported).

Through its application to the ZHB, Tri–County sought the following alternative forms for relief: (1) an appeal from the zoning officer's denial of a certificate of use and occupancy for its “existing,” nonconforming landfill use; (2) a request for a use variance; (3) a request for a dimensional variance from the zoning ordinance's 40–foot height limitation; and, (4) a challenge to the zoning ordinance based on its alleged de facto exclusion of landfills, together with a request for site specific relief.

Numerous hearings ensued before the ZHB, including two joint hearings with the Liberty Township Board of Supervisors. In the course of the hearings before the ZHB, Tri–County amended its application to include the additional, alternative legal bases of variance by estoppel and laches.

The ZHB heard 55 hours of testimony. Witnesses for Tri–County included Ed Vogel, one of its owners, James Echard, a civil engineer, and John Blazosky, a civil and environmental engineer. Several area residents testified in opposition to the proposed landfill. Additionally, Richard Grossman, a land planning expert, and James Lawrence Hosmer, a professional engineer, testified on behalf of Objectors.²

ZHB Findings

Based on the evidence presented, the ZHB issued extensive findings of fact as well as a memorandum opinion containing legal analysis and conclusions. We summarize the ZHB's findings as follows.

The zoning ordinance was first enacted on October 13, 1976 with subsequent amendments in 1984 and 1997. Since the original zoning ordinance in 1976, the property at issue here has been zoned R–1 Residential Rural. Despite 35 years of activity at this residential site since the enactment of the zoning ordinance, this is the first time any application was presented to the ZHB for any relief from the zoning ordinance.

Edward and Margaret Vogel first purchased the subject property in 1975. Since 1975, the Vogel family and its related entities (Tri–County Industries, Inc. and Tri–County Landfill, Inc.) conducted various landfill and transfer station activities at this Pine Township site. The ZHB stated it was called upon to make sense of this 35–year history of neglect of the Pine Township zoning ordinance by Tri–County, the Department of Environmental Protection (formerly the Department of Environmental Resources) (DEP) and Pine Township.

Zoning for Sanitary Landfills

Section 900 of the zoning ordinance provides for an I Industrial zoning district, the purpose of which is to provide “a Zoning District which will encourage the establishment and maintenance of industrial uses and particular business uses which will discourage the establishment of residential and other uses which are inappropriate in an Industrial Zoning District.” ZHB Op., 10/29/11, Finding of Fact (F.F.) No. 8.

Section 901.1(12) (Industrial Zone) of the zoning ordinance provides for sanitary landfills, solid waste transfer stations, or similar facilities for processing and disposal of solid waste by conditional use. F.F. No. 9.

Non-conforming Use Provisions

Article XV of the zoning ordinance sets forth regulations governing non-conforming uses, structures and lots. Specifically Section 1502 of the zoning ordinance, which concerns non-conforming uses of land, states:

Where, at the effective date of adoption or amendment of this ordinance, lawful use of land exists that is made no longer permissible under the terms of this ordinance as enacted or amended, such use may be continued, so long as it remains otherwise lawful, subject to the following provisions:

1502.1—No such non-conforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this ordinance, except as specified by Section 1500 of this ordinance.

1502.2—No such non-conforming use shall be moved in whole or in part to any other portion of the lot or parcel occupied by such use at the effective date of adoption of amendment of this ordinance.

1502.3—If any such non-conforming use of land ceases for any reason for a period of more than twelve (12) consecutive months, any subsequent use of such land shall conform to the regulations specified by this ordinance for the district in which such land is located.

F.F. No. 10.

Prior to the 1997 zoning ordinance amendments, Section 1502.3 stated, “if any such non-conforming use of land ceases for any reason for a period of more than thirty (30) days, any subsequent use of such land shall conform to the regulations specified by th[e] [zoning] [o]rdinance for the districtin which such land is located.” F.F. No. 11.

Residential Zoning

Section 400 of the zoning ordinance sets forth the permitted principal and accessory uses in the R–1 zoning district. Neither sanitary landfills nor solid waste transfer stations are permitted in the R–1 district.

Height Limitation

Section 402.1 of the zoning ordinance provides that any building used for the storage of agricultural products or machinery is not limited in height. Section 402.2 of the zoning ordinance sets forth the maximum height requirements for the R–1 district, and it states that “principal structures shall not exceed 40 feet in height.” F.F. No. 13. The storage of agricultural products and machinery is the only exception to the 40–foot height restriction in the R–1 district. Forty feet is the height restriction throughout the zoning ordinance except for a few limited exceptions set forth under Section 1402 Supplemental Height Regulations—sanitary landfills and transfer stations are not listed exceptions. Other than the storage of agricultural products and machinery and the exceptions listed in Section 1402, the zoning ordinance universally provides for a 40–foot height restriction.

Lack of Zoning Approvals

Notwithstanding the sections above concerning non-conforming uses, Tri–County expanded the landfill area over the years without zoning approval and wishes to expand again under its present application, this time with ZHB approval. Additionally, notwithstanding the section of the zoning ordinance concerning nonconforming uses, Tri–County has put in place a transfer station that is not in conformance with the R–1 district regulations, but is specifically provided for in an industrial district with approval of the local governing body. Further, notwithstanding the section of the zoning ordinance concerning non-conforming uses, Tri–County wishes to expand the area of the landfill from approximately 26 acres to a total of 94 acres.

Using a parcel of land as a dump or landfill or more modern landfill area and expansion of that use in a R–1 district requires ZHB approval, as does the use of an area in a R–1 district for a transfer station. Those activities are restricted to industrial zoning districts under the zoning ordinance.

Landfill Use at the Property and DEP Involvement

In August 1976, Tri–County Industries, Inc. and Edward and Margaret Vogel first filed an application for solid waste disposal (Phase I application) with the Department of Environmental Resources (DER, later known as DEP, and referred to as DEP throughout this opinion for clarity) seeking a permit for 90 acres on a 212–acre site. In that application, there was a section requesting information regarding zoning, and in the answers to the questions posed in the application, the applicants represented that there was no zoning ordinance and that the site was previously used for a landfill. Other questions asked whether zoning of the site permitted a sanitary landfill, and the applicants answered in the affirmative....