Geryville Materials, Inc. v. Planning Commission

26 Pa. D. & C.5th 110
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedJune 26, 2012
DocketNo. 2011-C-4051
StatusPublished

This text of 26 Pa. D. & C.5th 110 (Geryville Materials, Inc. v. Planning Commission) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Geryville Materials, Inc. v. Planning Commission, 26 Pa. D. & C.5th 110 (Pa. Super. Ct. 2012).

Opinion

FORD, J.,

Geryville Materials, Inc. (appellant) filed a notice of appeal from a decision of the Planning Commission of Lower Milford Township, Pennsylvania (commission), which is the appellee in this matter. The decision was announced at a meeting of the commission on October 3, 2011, and it was explained in a letter dated October 14, 2011, from Commission’s counsel to appellant. In the decision, the commission denied appellant’s preliminary plan for the development of a stone quarry. Because the commission acted in accord with the law, its decision is sustained and the appeal is denied.

Factual and Procedural History

Appellant is the owner of a 628.48 acre property in Lower Milford Township (township). Township is one of the intervenors in this case. A stream and two public roads, West Mill Hill Road and Buhman Road, cut through this land.

[112]*112On June 18, 2009, appellant submitted an application to the commission for approval of a preliminary land development plan (preliminary plan). Through the preliminary plan, appellant sought permission to develop a non-surface, stone extraction quarry on a 84.56 acre portion of its 628.48 acres. Appellant proposed that the quarry be located on the north side of West Mill Hill Road, with a water infiltration facility on the west side of West Mill Hill Road. Sections 241.2 and 241.4 of the Subdivision and Land Development Ordinance of Lower Milford Township (SALDO) direct that the commission review and approve or deny all preliminary land development plans in the township.

On August 3, 2009, the commission held its first meeting on appellant’s preliminary plan. The commission conducted many public meetings on the project over the next two years. Throughout this process, appellant made revisions to the preliminary plan, with submission of its last revision to the commission on October 11, 2010.

Beginning in May of 2011, township actively opposed appellant’s preliminary plan at the commission meetings. From May through July of 2011, township presented testimony to the commission that appellant’s plan failed to adhere to various sections of the Lower Milford Township Zoning Ordinance (ordinance) and the SALDO. Specifically, the township contended that appellant’s plan contained improper site capacity and natural resource protection calculations and violated the prohibition against partial subdivision of land. Township concluded the presentation of its evidence at the public meeting held on July 11, 2011.

[113]*113The commission held its next public meeting on appellant’s preliminary plan on August 1,2011. However, appellant did not appear for this meeting. Instead, appellant submitted a written stipulation to the commission indicating that appellant agreed to an extension of the time period for the commission to consider the preliminary plan. (Appellant executed the stipulation to avoid a “deemed approval” of the preliminary plan pursuant to 53 P.S. § 10508(3).) Appellant consented to the commission’s entering a decision on the preliminary plan by a date no later than October 31,2011.

At a public meeting conducted on September 12,2011, the commission again offered appellant the opportunity to present rebuttal evidence. However, counsel for appellant informed the commission that appellant would not be offering any rebuttal witnesses. Instead, counsel for appellant notified the commission that he would only be making legal argument in opposition to township’s position. Because the evidence was completed on the preliminary plan, the commission asked each party to submit a written memorandum on the issues. Finally, the commission announced at this meeting that it was scheduling a meeting for September 28, 2011, to publicly deliberate on the issues surrounding the preliminary plan.

At the September 28, 2011, public meeting, the commission heard arguments on the preliminary plan, in addition to the memoranda that had been submitted. After considerable deliberation, the commission decided that it would enter a decision at the next public meeting to be held on October 3, 2011.

At the start of the public meeting on October 3, 2011, [114]*114appellant submitted a written request to the commission seeking another extension of time for the commission to consider the preliminary plan. The commission denied the extension request and resumed its deliberations. At the conclusion of the October 3 meeting, the members of the commission voted unanimously to deny appellant’s preliminary plan. In doing so, the commission determined that the plan: (1) used improper site capacity calculations under section 314.22 of the SALDO and Section 472.d of the ordinance; (2) proposed an impermissible partial land development under Section 318 of the SALDO; and (3) did not comply with the natural resource protection standards listed at Sections 470, 471 and 472 of the ordinance.

On November 10, 2011, appellant filed the present “notice of appeal and petition for review of denial of land development plan.” In this appeal, appellant challenges the commission’s October 3, 2011, denial of its preliminary plan. The commission filed a reply to the appeal on December 1, 2011.

On November 30,2011, township, acting under 53 P.S. § 11004-A, filed a notice of intervention in support of the commission’s denial of appellant’s preliminary plan.

On January 23, 2012, an order was entered accepting a stipulation allowing Lori Sickenberger and Don Weinberger to intervene in this appeal. Ms. Sickenberger and Mr. Weinberger are Township residents who oppose appellant’s proposed quarry.

On March 30, 2012, the attorneys made excellent arguments on the appeal. At argument, each party agreed that the court’s review was restricted to the record developed before the commission. No additional evidence [115]*115was presented at the argument. Appellant, the commission and township had earlier filed very helpful briefs in support of their respective positions. Ms. Sickenberger and Mr. Weinberger filed a brief adopting the arguments of the commission and township.

Discussion and Conclusions of Law

Appellant argues that the commission’s decision to deny the preliminary plan must be overruled for three primary reasons. First, appellant contends that the natural resource protection standards contained in sections 470, 471 and 472 of the ordinance are preempted by state law and are therefore unenforceable against appellant. Second, appellant argues that the commission erred in concluding that appellant’s site capacity and natural resource protection calculations violated the SALDO and ordinance. This argument assumes that the natural resource protection standards are not preempted. Third, appellant asserts that the commission violated its duty of good faith in acting on appellant’s preliminary plan. For the reasons that follow, all of appellant’s contentions lack merit.

In a land use appeal where the court does not take additional evidence, the court’s review is limited to whether the local agency committed an abuse of discretion or error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 639 (1983); and 53 P.S. § 11005-A. The court may not substitute its judgment for that of the local agency unless the agency manifestly abused its discretion. Nascone v. Ross Township Zoning Hearing Board,

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Bluebook (online)
26 Pa. D. & C.5th 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/geryville-materials-inc-v-planning-commission-pactcompllehigh-2012.