GIBBEL KRAYBILL & HESS LLP
By: J.
Attorney I.D. No. 81985
(1717) 291-1700
IN THE COURT OF
COMMON PLEAS OF
CIVIL ACTION
CLEAN ENVIRONMENT; DANIEL )
WILLIAMS )
)
v. ) No. CI-09-15101
)
OF SUPERVISORS ) LAND USE APPEAL
BRIEF IN SUPPORT OF APPEAL
I. INTRODUCTION
Chester Countians for a Clean Environment (“CFACE”) and Daniel Williams (collectively “Citizens”) support the decision of the London Grove Township Board of Supervisors (“Board”), which denied Superior Growers’ application for conditional use approval of a large composting facility for failing to satisfy the objective criteria of the zoning ordinance. However, because Superior Growers appealed the Board’s decision (which is filed under a separate docket), Protestants have taken this current appeal as a precautionary measure because the record established that the proposed use would devastate the surrounding residential properties and neighborhoods. Therefore, the Citizens wanted to preserve the right to seek a remand to the Board should it become necessary for the Board to make specific findings and conclusions as to whether the proposed use would adversely impact the public health, safety and welfare.
II. STATEMENT OF THE CASE
Protestants provide the following summary of this case as background for their current protective appeal. Protestants refer the Court to the Board’s full decision for a complete statement of the case (attached hereto as Exhibit “A”).
On
October 31, 2008, Superior Growers filed an application for Conditional Use
Approval with
The Property currently consists of undeveloped agricultural lands used for crop farming. The land is characterized by open, rolling fields with some woodlands. The properties surrounding the property consist primarily of single family homes, many that include families with young children. There are approximately fifty single family homes in the immediate vicinity of the Property. In fact, the Property surrounds (on three sides) the single family residential home where Daniel Williams lives with his wife. In addition to the residential homes, there are family farms in the area that raise crops and cattle.
It was undisputed that the surrounding area is very quiet and peaceful, particularly at night. There are no existing odor problems in the area and it is generally dark at night with the exception of small house lights. The surrounding roads are very narrow, with little or no shoulders. Residents and children frequently use the surrounding roads for walking, running and riding bike.
Superior Growers has proposed developing the Property into a massive composting and mushroom growing facility, with the types of impacts that would be found with a heavy industrial / manufacturing operation. The proposed facility would include 549,000 square feet of substrate preparation wharves; 527,017 square feet of mushroom growing rooms; a 12,000 square foot building for a truck repair and terminal; a 3,840 square foot office; and 5,040 square feet for employee housing. The composting wharves alone (all of which would be outside) would encompass over twelve acres while the entire facility would consist of more than thirty-nine (39) acres of impervious coverage. Thus, the scope of the facility is greater exponentially than any use within the entire Township.
In addition, the operation itself would be very intensive and, literally, around the clock. For example, large and noisy diesel trucks, bucket loaders, forklifts and other heavy equipment would operate outside throughout the day and night. In fact, representatives of Superior Growers testified that there would be lights and noise generated from the site twenty-four hours a day, seven days a week. The facility itself would operate twenty-four hours a day, seven days a week and 365 days a year. In addition to the extensive composting and mushroom growing operation, there would be a truck repair and terminal facility, an equipment repair shop and a fabrication repair garage on the Property, where employees would work on hydraulics, diesel engines and perform welding and sheet metal work. There are no other facilities anywhere within the Township that are even close in size or intensity to the proposed facility.
During the hearings, extensive testimony and evidence was presented demonstrating that Superior Growers had failed to satisfy many of the objective criteria of the zoning ordinance. The Citizens also offered into evidence many exhibits and presented extensive testimony (from both experts and residents) establishing that the proposed use at this Property would be injurious to the public health, safety and welfare.
On November 25, 2009, the Board issued a written decision denying Superior Growers’ application concluding that Superior Growers failed to satisfy many requirements of the Township’s Zoning Ordinance. Because the Board concluded that Superior Growers failed to satisfy the objective criteria of the ordinance, it was unnecessary for the Board to render any findings or conclusions related to whether the Citizens had established that the proposed use would be injurious to the public health, safety and welfare of the community.
On December 23, 2009, Superior Growers filed a land use appeal challenging the Board’s denial of its conditional use application. Superior Growers suggested in its appeal that because the Supervisors did not render any specific findings regarding whether the proposed use would be injurious to the public health, safety and welfare, that the Supervisors had concluded the proposed use would not be injurious to the public health, safety and welfare. Quite to the contrary, the Supervisors did render numerous findings reflecting that the proposed use would be injurious to the public health, safety and welfare. Indeed, the testimony and evidence in this case was overwhelming that the proposed use would be very detrimental to the surrounding community, would have serious health and safety issues, is contrary to the welfare of the surrounding residential neighborhood and would completely destroy those homes in the immediate vicinity, particularly the home owned by Mr. Williams. The Supervisors, however, did not render any final conclusions because it was unnecessary to do so in light of Superior Growers’ failure to carry its burden of satisfying the objective criteria of the zoning ordinance.
The Citizens maintain that the Supervisors correctly denied Superior Growers’ conditional use application for failing to satisfy the objective criteria of the zoning ordinance. If the Supervisors’ decision is affirmed on appeal, the Citizens’ appeal will become moot. However, in light of the incorrect assertions Superior Growers raised in its appeal and to fully protect the rights of the neighbors and the community, the Citizens filed this protective appeal. The Citizens maintain that they carried their burden of establishing that the proposed composting facility would be injurious to the public safety, health and welfare. Therefore, to the extent that it may be necessary, the Citizens would seek a remand to the Supervisors to render specific findings and conclusions on whether the proposed composting facility would be injurious to the public safety, health and welfare.
Currently Superior Growers’ appeal (docketed at 09-15011-LU) is following the regular briefing schedule and will be considered in due course. Citizens respectfully submit that their protective appeal should be consolidated with Superior Growers’ appeal at docket 09-15011-LU because of the related nature of the appeals and the fact that both appeals rely on the same record.[1]
III. DISCUSSION
An
applicant for a conditional use approval must establish that he meets the
express requirements set forth in the zoning ordinance.
If an applicant satisfies the objective criteria of the
ordinance, the burden then shifts to the protestants to prove, with a high
degree of probability, that the use would adversely impact the public
interest.
The body hearing an application for a conditional use is to
render findings of fact, which include determining the credibility of witnesses
and the weight to be given the evidence.
Young v. Pistorio, 715 A.2d
1230 (
In the instant case, the Supervisors
denied Superior Growers’ conditional use application because it failed to
satisfy the objective criteria of the zoning ordinance. Because Superior Growers failed to meet their
burden, the burden never technically shifted to the Citizens for establishing
that the composting facility would adversely impact the public interest. Thus, even though the Citizens presented
extensive evidence (and maintain that they carried their burden), it was
unnecessary for the Supervisors to render specific conclusions regarding
whether the Citizens met their burden of proof.
As set forth in the Statement of the
Case, the Citizens took this present appeal as a precautionary matter based on Superior
Growers’ incorrect assertions in its own appeal. Superior Growers incorrectly suggested in its
appeal that because the Supervisors rendered no specific findings that the
proposed use would adversely impact the public health, safety or welfare that
no such testimony or evidence was ever presented. See
The record actually establishes that
the Citizens presented substantial evidence establishing to a high degree of
probability that the proposed facility would adversely affect the health,
safety and welfare of the community. See N.T. from June 11, 2009 and CFACE
exhibits. However, because it was
unnecessary for the Supervisors to render such findings in light of Superior
Growers’ failure to carry its initial burden, the final decision is silent on
whether the Citizens carried their burden.
In cases where the deciding body does not render findings or conclusions
on a particular matter, the
Accordingly, the Citizens have taken
this protective appeal to protect their right to challenge Superior Growers’
claim that the Citizens did not carry their burden of establishing that the
proposed composting facility would be injurious to the public safety, health
and welfare and to request a remand to the Supervisors should findings and
conclusions on this point become necessary.
IV. CONCLUSION
For the foregoing reasons, CFACE and Daniel Williams requests your Honorable Court to affirm the Supervisors’ decision denying Superior Growers, L.P.’s conditional use application because Superior Growers failed to satisfy the objective criteria of the Ordinance. The conditional use application should also be denied because Appellants carried their burden of establishing that the proposed use would be injurious to the public safety, health and welfare of the community. Alternatively, to the extent it may be necessary, Appellants request that the matter be remanded to the Board of Supervisors to render specific findings and conclusions regarding whether Appellants carried their burden that the proposed use would be injurious to the public safety, health and welfare of the community.
Respectfully submitted,
GIBBEL KRAYBILL & HESS LLP
By: ___________________________________
J.
Attorney for CFACE and Daniel Williams
(717) 291-1700
Sup. Ct. Atty. I.D. #81985
CERTIFICATE OF SERVICE
I
HEREBY CERTIFY that I have this _____ day of February, 2010 served the
foregoing document upon the persons and in the manner indicated
below.
Service
by first class mail, addressed as follows:
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Michael G. Crotty, Esquire Eric M. Brown, Esquire Siana, Bellwoar & McAndrew,
LLP 941 Pottstown Pike, |
Denis M. Dunn, Esquire Petrikin, Wellman,
Damico, Brown & Petrosa The |
|
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GIBBEL, KRAYBILL & HESS By: J.
Attys. for CFACE and Daniel Williams (717) 291‑1700 Sup. Ct. Atty. I.D. #81985 |