Appeal of Dippolito

833 A.2d 336, 2003 Pa. Commw. LEXIS 701
CourtCommonwealth Court of Pennsylvania
DecidedOctober 7, 2003
StatusPublished
Cited by7 cases

This text of 833 A.2d 336 (Appeal of Dippolito) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Dippolito, 833 A.2d 336, 2003 Pa. Commw. LEXIS 701 (Pa. Ct. App. 2003).

Opinion

OPINION BY

Judge PELLEGRINI.

Upper Merion Township (Township) appeals from an order of the Court of Common Pleas of Montgomery County (trial court) reversing the decision of the Zoning Hearing Board of Upper Merion Township (Board) and granting the request for a special exception filed by Michael Dippoli-to (Dippolito) allowing him to operate a tub grinder on his property.

Dippolito owns two acres of property which is part of an approved three-lot subdivision in the HI-Heavy Industrial District of the Township. The southeastern portion of the property is adjacent to and abuts a residential neighborhood which is zoned as an R-2 Residential District. Dip-polito owns and operates a business called Mario’s Tree Service, a landscaping business, and the property in question was purchased to serve this business which serves as a storage site for the business.1 On September 10, 2001, Dippolito moved a 98,000-pound tub grinder onto the property for the purpose of grinding up trees obtained from his other landscaping operations. He began testing the tub grinder to determine if he was going to purchase the machine and applied for a temporary use permit to use the tub grinder, but the permit was denied and the tub grinder was removed from the property. Subsequently, Dippolito purchased the tub grinder on October 1, 2001, moved it back onto his property and began using it to grind up large logs.

Sometime prior to December 2001, Dip-polito was informed by the Township that due to the excessive noise of the tub grinder, he could not operate the machine without first seeking a special exception from the Board under the Township’s Code Section 165-153C(l)(d).2 Dippolito filed an application with the Board on December 5, 2001, requesting a special exception. At the public hearing on January 9, 2002, he testified that the tub grinder would be in operation during the week, Monday through Friday, between the hours of 9:00 a.m. to 4:00 p.m., with a break for lunch. He stated that the tub grinder would be located over 400 feet from the closest property, and that the manufacturer’s specifications indicated that the decibel level at that distance would be 70.76. Dip-polito further testified that there would be [339]*339three to five truckloads of wood delivered daily to the property. In addition, there would be numerous trucks from his business entering and leaving the property throughout the day. He stated that he had no plans to fence his property. In opposition to his application, numerous neighbors testified that the tub grinder was extremely noisy when in operation.

After the hearing, the Board initially noted that Dippolito’s proposed use was not specifically enumerated in Code Sections 165-153C(l)(a)-(c), but that its very nature made its use akin to a cement plant, a foundry or a steel mill, and, therefore, fell within Code Section 165-153C(l)(d). The Board then denied his request because he had not met his burden under Code Section 165-153(0(2). It determined that based on Dippolito’s own testimony, the neighbors would be constantly exposed to at least 70 decibels of noise during the daily operation of the tub grinder, he had taken no measures to adequately reduce or minimize the noise levels, and, in fact, had removed all of the surrounding trees that would have served to dissipate some of the noise to the surrounding neighbors. The Board further determined that because there would be numerous trucks entering and leaving his property, there was no evidence that an increase in traffic would be accommodated in a safe and efficient manner, and Dippoli-to had not yet received a approved subdivision plan indicating ingress to and egress from his property, he had not met his burden under Code Sections 165-250B(l)(c), (d) and (e).3

Following that denial, Dippolito submitted a second application requesting an interpretation that the use of the tub grinder on the site was permitted by right and, in the alternative, a request for a special exception under Code Section 165-153(C)(1)(d). He indicated that he would meet the requirements of Code Section 165-153(0(2) and that he had made provisions to adequately reduce or minimize the noise from the tub grinder. Another public hearing was held at which Dippolito testified that the tub grinder would operate at 106-108 decibels, and he intended to install buffering, a stockade fence and a retaining wall in the future, but could not afford to do so until the tub grinder was in operation for a period of time. In the meantime, Dippolito stated that he would maintain an existing wood pile as a buffer and plant additional trees. He stated that he would only operate the tub grinder between 9:00 a.m. and 4:00 p.m. when most residents were away from their homes at work. As to the Board’s concern regarding peak traffic, Dippolito testified that [340]*340there would be ten vehicles per day for a total of 20 trips per day generated by the use of the tub grinder, which would be an increase from the five to eight trips per day currently being generated by his existing business. He agreed to limit the time for those deliveries to normal working hours as determined by the Township. The Board again denied Dippolito’s requests, stating that the second application was res judicata because he was seeking the same relief. Nonetheless, it went on to determine that Dippolito had not met his burden under the Code because he still had not made any substantive provisions to install a buffer between his property and the property adjacent to the Residential District. The Board also found that he had presented no new testimony regarding compliance with the Code as it related to accommodating peak traffic in a safe and efficient manner.

Dippolito appealed to the trial court which reversed the Board. The trial court initially found that the Board incorrectly concluded that the doctrine of res judicata barred Dippolito’s second application because there had been substantial changes in conditions or circumstances relating to his property. Specifically, it determined that in Dippolito’s second application, he sought to use Lot 2 of the subdivided property which did not exist as a separate parcel when the first application was filed and resolved because there was no final subdivision approval at that time. Also, the second application requested an interpretation of the Code that the use was permitted by right. Finally, Dippolito presented testimony regarding proposals to buffer the site to reduce the noise. As to the application for the special exception, the trial court found that the Board erred in denying Dippolito’s application because the Code did not provide a standard as to what level of noise would create an adverse impact and the Board imposed no conditions. Therefore, the trial court reasoned that Dippolito could not comply "with that which did not exist. Also, the Board did not show that the operation of the tub grinder would result in substantial harm. The trial court further found that Dippolito had provided evidence that he made provisions to buffer the noise levels and accommodate peak traffic by limiting deliveries to normal working hours as determined by the Township. This appeal by the Township followed.4

The Township initially argues that the trial court erred in finding that Dippolito’s second application was not barred by the doctrine of res judicata

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Becker v. Falls Road Comm. Ass'n
Court of Appeals of Maryland, 2022
Bell v. Township of Spring Brook
30 A.3d 554 (Commonwealth Court of Pennsylvania, 2011)
PPM Atlantic Renewable v. Fayette County Zoning Hearing Board
13 Pa. D. & C.5th 458 (Fayette County Court, 2010)
Kleinman v. Lower Merion Township Zoning Hearing Board
916 A.2d 726 (Commonwealth Court of Pennsylvania, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
833 A.2d 336, 2003 Pa. Commw. LEXIS 701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-dippolito-pacommwct-2003.