The Comprehensive Plan; just a planning document?

Posted on September 11, 2009 by Chip Haws

 In Geryville Materials, Inc. v. DEP, Docket No. 152 MD 2009 DEP issued a letter to Geryville Materials indicating that it was going to suspend review of Geryville Material's permit application for a quarry. DEP suspended its review of the permit application based on a letter from the Lehigh Valley Planning Commission ("LVPC") that the proposed quarry was not consistent with the comprehensive plan. Quarry use is a permitted use as a special exception. Geryville Materials is pursuing a special exception. Geryville Materials filed an equity actions in the Commonwealth Court's original jurisdiction seeking an order that required DEP to continue to review its application. The Court in an unreported decision authored by Judge Pellegrini, denied DEP's preliminary objections. The Judge pointed out to DEP that the comprehensive plan is simply a planning document, it was not consistent with the zoning ordinance regarding the proposed use and that DEP misapplied its obligations under Act 67 and Act 68 by suspending its review of the permit application.

Tags: ,

Land Application of Biosolids: Limitations on DEP's authority to impose conditions

Posted on July 10, 2009 by Chip Haws

The Environmental Hearing Board ("EHB") in the case of Douglass Township v. DEP and Synagro (April 2009), determined that the Department did not abuse its discretion in rejecting the Township's request to revise its approval for the land application of biosolids by limiting such land application only to exceptional quality sludge, requiring the applicator to provide advance notice to the Township prior to any land application, providing copies to the Township of any reports to be submitted to the Department and to provide the Township access to the site during any application activity.  The Board determined that the DEP was limited in its ability to impose only such conditions as "are necessary to protect public health and the environment from the adverse effects of pollutants in sewage sludge".  The Board determined that DEP engaged in sufficient consultation and cooperation with the Township prior to issuing its approval of the biosolids application to Synagro. 

 

 

 

 

Tags: ,

State Surface Mining Act Does Not Preempt Township Setback

Posted on June 23, 2009 by Chip Haws

The Commonwealth Court in Hoffman Mining Company v. Zoning Hearing Board of Adams, (958 A.2d 602) determined that the Surface Mining Conservation and Reclamation Act, 52 P.S. 1396.1 et. seq. ("SMCRA"), does not preempt a Township setback requirement. The Township enacted an ordinance which established a 1000 foot setback for mining activity from residential structures. The Surface Mining Act establishes a 300 foot setback requirement. The Surface Mining Act at 52 P.S. Section 1396.17a incorporates a preemption relating to the regulation of surface mining activity and specifically provides:

Except with respect to ordinances adopted pursuant to the act of July 31, 1968 (P.L. 805, No. 247) known as the "Pennsylvania Municipalities Planning Code", all local ordinances and enactments purporting to regulate surface mining are hereby superseded. The Commonwealth by this enactment hereby preempts the regulation of surface mining as herein defined.  

The Court in Hoffman saw the issue as a question of whether the preemption related to all zoning regulations promulgated after the adoption of SMCRA. The Court held that the setback limitation of 1000 feet was a proper zoning requirement, which was not preempted by SMCRA. The Court distinguished the setback limitations at issue in Hoffman from the operational requirements at issue in Warner Co. v. ZHB of Tredyffrin Township, 612 A.2d 578 (Pa. Cmwth 1992). The ordinance at issue in Warner addressed, buffer and berms, storage of overburden and details regarding reclamation of a quarry. The Court in Hoffman viewed the setback limitation as a proper land use control connected to land use planning, rather addressing operational surface mining activity. The Court reasoned that if the Township could properly prohibit a use within a zoning district, it should properly be permitted to take the less onerous step of establishing setback requirements that are more than the 300 foot limit imposed by SMCRA.

Tags: