Jojo Oil Co. v. Dingman Township Zoning Hearing Board

77 A.3d 679, 2013 WL 5082830, 2013 Pa. Commw. LEXIS 374
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 13, 2013
StatusPublished
Cited by20 cases

This text of 77 A.3d 679 (Jojo Oil Co. v. Dingman Township Zoning Hearing Board) 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
Jojo Oil Co. v. Dingman Township Zoning Hearing Board, 77 A.3d 679, 2013 WL 5082830, 2013 Pa. Commw. LEXIS 374 (Pa. Ct. App. 2013).

Opinions

OPINION BY

Judge McGINLEY.

Sunrise Lake Association and Conas-haugh Lake Community Association (Objectors 1) contest the order of the Court of Common Pleas of Pike County (trial court) which reversed the Dingman Township Zoning Hearing Board’s (ZHB) denial of the application of JoJo Oil Company, Inc., d/b/a Airline Petroleum (Applicant) for a special exception permit for a “bulk fuel transfer station.”

[682]*682Applicant was in the business of selling and delivering propane2 and home heating oil. In March 2011, Applicant submitted a zoning application to the Township for a bulk fuel transfer station in a RC — Resort/Commercial Zoning District3 on a 3.3-acre parcel (Property). The proposed use would include two underground 20,-000-gallon heating oil tanks, one above-ground 30,000-gallon propane tank, a truck-loading area and a turn-around. The site would be unmanned and there would be no office or other structure on the site. The proposed tanks were double-walled and enclosed by an eight-foot high chain link fence topped with barbed wire.

The Zoning Officer determined that a “bulk fuel transfer station” use was not a permitted, conditional or special exception use in any zoning district in the Township. That being the case, the Zoning Officer proceeded in accordance with Section 105 of the Dingman Township Zoning Ordinance (Zoning Ordinance) entitled: “Uses Not Provided For” which sets forth the procedure to be used when a proposed use is neither permitted nor prohibited in the Zoning Ordinance.4 This “savings provision,” as it is often referred to, provides:

Section 105-Uses Not Provided For

Whenever, in any District established under this Ordinance, a use is neither specifically permitted nor denied and an application is made by the property omier to the Zoning Officer for such use, the application shall be referred to the Zoning Hearing Board which shall have the authority to permit the use; or deny the use, as a Special Exception. The use may be permitted if it is similar to and compatible with permitted uses (uses listed as permitted, conditional uses, and special exceptions) in the district, and in no way conflict with the general purpose and intent of this Ordinance and the use is not permitted in any other district. The Zoning Hearing Board may attach reasonable conditions to the issuance of a permit incorporating exiting standards from similar uses in the district and such [683]*683other restrictions as the Board may deem appropriate. (Emphasis added).

Zoning Ordinance, Section 105.

The standards for a Special Exception are set forth in Section 404.2 of the Zoning Ordinance:

404.2 Special Exceptions — Uses specified as special exceptions under this Ordinance shall be permitted only after review by the Planning Commission and review and approval by the Zoning Hearing Board. Such approval shall be based on the determination that the use is appropriate to the specific location for which it is proposed, consistent with the Comprehensive Plan, in keeping with the purpose and intent of the Ordinance. The following criteria shall be used as a guide in evaluating a proposed use:
a. The presence of adjoining similar uses.
b. The presence of an adjoining district in which the use is permitted.
c. The need for the use in the area proposed, as established by the Comprehensive Plan.
d. Sufficient area to effectively screen the use from nearby different uses.
e. Conditions such that there were several potential sites for the use but not a sufficient need to establish a permitting zone district or to leave the District open to indiscriminate placement of such use.
f. Sufficient safeguards such as parking, traffic control, screening and setbacks can be effectuated to remove any potential adverse influence the use may have on adjoining uses.
g. The burden of proof shall remain with the applicant to show compliance with all standards and the burden shall never shift to the Township.
h.Applicants shall submit plot plans in sufficient detail to provide the Board and the Planning Commission with enough information to properly evaluate the proposed planned use.

Zoning Ordinance, Section 404.2 (Emphasis added).

The ZHB held a hearing on July 26, 2011. Approximately 80-100 people attended. Applicant presented the testimony of Joseph Hudak (Hudak), a licensed professional engineer. Hudak prepared the sketch plans and application. Hudak described in detail the tanks and where they would be situated on the Property. The proposed use would meet the required buffers for front, side and rear setbacks according to the Zoning Ordinance. He indicated that the Applicant “actually exceeded them for the side yards and the rear yards.”- Notes of Testimony, July 26, 2011, (N.T.) at 20; Reproduced Record (R.R.) at 22a. The proposed use would be surrounded by an eight-foot high chain link fence, with plastic strip shielding and barbed wire on top. N.T. at 20; R.R. at 22a. The plan was to plant ground shrubbery, and plant nondeciduous evergreen trees as a screen.

With regard to the potential for fire and explosion hazards, Hudak testified that the facility would meet all National Fire Protection Association (NFPA) requirements and other federal and state rules and regulations regarding the storage of LPG products. N.T. at 22; R.R. at 24a. Hudak opined that the proposed use was most similar to a “gasoline station” which was designated as a “conditional use” in an RC Zoning District. N.T. at 28-29; R.R. at 30a-31a. There would be no vibration or noise beyond the site boundaries. Nor would there be any smoke, odor or air pollution. He testified that the fuel tanks had adequate safety devices to prevent [684]*684surface or groundwater contamination. N.T. at 25; R.R. at 27a.

On cross-examination, Hudak indicated that the nearest residence from the above-ground tank would be approximately 185 feet. N.T. at 38; R.R. at 40a. Hudak explained that the term “BLEVE” stood for boiling liquid expanding vapor explosion which could be a concern with above-ground propane tanks. N.T. at 39; R.R. at 41a. He indicated that he was not an expert on this subject and offered nothing further regarding the subject other than to indicate that Applicant was not considering burying the tank, or installing an automatic water deluge system to protect against BLEVE. N.T. at 39-40; R.R. at 41a-42a.

Applicant also presented the testimony of its Director of Operations, John Occhi-piniti (Occhipiniti), who testified that Applicant had other similar facilities in Coolbaugh Township, Monroe County, Pennsylvania and in Laceyville, Pennsylvania. N.T. at 50; R.R. at 52a. Applicant never had a safety issue ■ or issue with ground water contamination. N.T. at 51; R.R. at 53a. Occhipiniti confirmed that the facility would not be manned, however, the tanks would be equipped with electronic monitoring equipment and automatic shut-off valve in case of a leak or spill. N.T. at 67-68; R.R. at 69a-70a. He indicated that the local fire department would be trained to handle any emergencies that may occur.

Objectors also presented witnesses.

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

Related

Heisler's Egg Farm, Inc. v. Walker Twp. ZHB
Commonwealth Court of Pennsylvania, 2020
Tower Access Grp., LLC v. S. Union Twp. Zoning Hearing Bd.
192 A.3d 291 (Commonwealth Court of Pennsylvania, 2018)
Marr Development Mifflinville, LLC v. Mifflin Township Zoning Hearing Board
166 A.3d 479 (Commonwealth Court of Pennsylvania, 2017)
Horvath Towers III, LLC v. Zoning Hearing Board of Butler Township
247 F. Supp. 3d 520 (M.D. Pennsylvania, 2017)
Grim v. ZHB of Perry Township and Township of Perry
Commonwealth Court of Pennsylvania, 2016
Coyle v. City of Lebanon Zoning Hearing Board
135 A.3d 240 (Commonwealth Court of Pennsylvania, 2016)
Deiter Family, L.P. v. City of Easton Building Code Board of Appeals
130 A.3d 795 (Commonwealth Court of Pennsylvania, 2015)
Tinicum Township v. Nowicki
99 A.3d 586 (Commonwealth Court of Pennsylvania, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
77 A.3d 679, 2013 WL 5082830, 2013 Pa. Commw. LEXIS 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jojo-oil-co-v-dingman-township-zoning-hearing-board-pacommwct-2013.