United States: Commonwealth Court Affirms Limitation On Natural Expansion

The Commonwealth Court recently issued a pair of related opinions that addressed a developer's ability to construct a landfill on a parcel straddling two municipalities. The case reported by the court, Tri-County Landfill, Inc., v. Pine Township Zoning Hearing Bd.1, (Tri-County I), featured several holdings of interest to a wider audience2. Because the trial court did not take any additional evidence, the Zoning Hearing Board (ZHB) was the finder of fact, and the Commonwealth Court (the Court) reviewed the ZHB's decision using an abuse of discretion/error of law standard. First, the Court rejected the developer's argument that the proposed use was a natural expansion of the pre-existing nonconforming use. Second, the Court held that the ordinance unambiguously classified a modern landfill as a "structure" subject to the township-wide 40 foot height limit. Third, the Court found that the applicant did not carry its burden of proving that it was entitled to a variance for the height of the proposed structure based on economic hardship when the property's current use was profitable. Finally, the Court held that Tri-County was not entitled to a variance by estoppel or laches because the use for which zoning relief was requested – the construction of a 140 foot tall landfill – was quite different from the use made of the property over the previous 20 years – that of a waste transfer station. This article will review the Court's opinion in Tri-County I. The unreported decision, Tri-County Landfill, Inc. v. Liberty Township Bd. of Supervisors (Tri-County II) will be discussed in a future issue of In the Zone. Due to the extraordinarily complex factual background spanning four decades, this article will review the facts of the case cursorily.

In October 2010, Tri-County Landfill, Inc., (Tri-County) sought relief from the Pine Township (Township) Zoning Ordinance (Ordinance) to construct a landfill 140 feet in height on the subject property (the Property). The Property, purchased by Edward and Margaret Vogel in 1975, was a 212-acre site spanning two municipalities in Mercer County. The Vogels and their various related entities (including Tri-County) operated either a landfill (1975-1990) or a waste transfer station (1990-present) on the Property beginning in 1975, prior to the adoption of the Ordinance. The Ordinance, adopted in October 1976, zoned the Property R-1 Residential Rural. Landfills and waste transfers stations, as one might expect, were not permitted uses in the R-1 Residential Rural District. Such uses were permitted in the I-Industrial District.

Over the years, Tri-County (or one of its related entities) submitted multiple applications to the Department of Environmental Protection (DEP) for a permit to operate a landfill on the Property. The Court detailed the complex history of the expansion of the landfill from its original 19-acre site on the Property, describing the various phases of applications made by Tri-County to the DEP to operate, and then expand the operation of a landfill. At various points between 1976 and 1990, the Property owners entered into various consent orders with the DEP regarding the operations on the land

After the DEP ultimately ordered Tri-County to close the landfill in 1990, DEP granted Tri-County an emergency solid waste transfer station permit that same year. However, Tri-County never requested a permit for this use, despite the Ordinance's adoption and clear prohibition on siting solid waste transfer stations in the R-1 Residential Rural district without zoning relief.

When Tri-County sought zoning relief in 2010 to construct a new landfill on the Property, it had been close to 20 years since it had last operated a landfill on the Property. The Ordinance in effect in 1990 when Tri-County ceased landfill operations on the Property included a section stating that the cessation of any pre-existing, non-conforming use for more than 30 days was an abandonment of that use (the Ordinance was later amended to change the 30 days to 12 months). The Court rejected Tri-County's argument that the waste transfer station was the same use as the landfill, affirming the ZHB's findings that the Ordinance described landfills and waste transfer stations as different and distinct uses. Additionally, the Court found the impacts that a waste transfer station have on the neighboring community are significantly different in type and scope than those of a 140 ft. tall landfill. The Court also rejected Tri-County's argument that the new landfill was a natural expansion of its prior use due to the abandonment by Tri-County of the landfill use in 1990.

Further, the Court rejected Tri-County's argument that the Ordinance was ambiguous in its definition of "structure.3" Tri-County essentially argued that definition was unclear because it did not specifically list "landfill" under the "structure" definition, and in another part of the Ordinance, listed out "building" and "landfill" in a list. Tri-County claimed the doctrine of ejusdem generis supported their reading of the Ordinance. The zoning ordinance defined a structure as "a combination of materials forming a construction for occupancy and/or use including among other[s], a building, stadium, gospel tent, circus tent, reviewing stand, platform, staging, observation tower, radio tower, water tank, trestle, pier, wharf, open shed, coal bin, shelter, wall and a sign." The Court declined to read any ambiguity into the term "structure."

Tri-County presented evidence to the ZHB that Township had known about the operation of the waste transfer station since its inception in 1990. The Court rejected the argument that any failure by the Township to require a permit for the waste transfer station somehow invoked the doctrine of laches or estoppel as to the construction of a new, 140 ft. tall landfill. More specifically, Tri-County argued that the Township was aware of the landfill when the Township zoned the parcel R-1 Residential Rural in 1976, and that the Township knew the Applicant was operating a waste transfer station on the Property following the closure of the landfill in 1990. Tri-County argued that the failure of the Township to notify it of the need for a permit for the waste transfer station in 1990 entitled Tri-County to a variance by estoppel, because this failure "reflect[ed] its understanding that landfill operations and the transfer stations exist as the same non-conforming use." After reviewing the requirements for a variance by estoppel4, the Court rejected Tri-County's argument wholesale based both on the fact that Tri-County could not have acted in reliance on constructing a new landfill when it was not built yet, and Tri-County did not prove that it would suffer "unnecessary hardship" due to the denial of the variance.

The Commonwealth Court also determined that the zoning hearing board and trial court properly denied a request for a dimensional variance in height for the 140 ft. structure proposed for construction. The Commonwealth Court rejected Tri-County's argument that a 40 ft. height restriction in all zoning districts on the construction of buildings taller than 40 ft. was an unconstitutional, de facto exclusion of landfills in all zoning districts. Objectors to the proposed 140 ft. landfill presented the testimony of an expert witness who refuted Tri-County's expert's testimony that Tri-County could not operate the proposed landfill in an economically viable manner unless the landfill was built to a height of 140 feet. Thus, Tri-County was not entitled to a variance because of economic hardship. The Court found that the ZHB had committed no error in crediting the objectors' expert's testimony and finding that the landfill could be operated in an economically viable fashion at a height of 40 ft. As the Court noted, Tri-County already currently operated an economically viable transfer station on the Property.

Similarly, the Court sided with the ZHB in finding that Tri-County was also not entitled to a variance from the 40 ft. height restriction, as Tri-County failed to show that a "substantial burden attends all dimensionally compliant uses of the Applicant's property.5"

Ultimately, this case demonstrates that property owners and developers rely on the doctrine of natural expansion of a pre-existing, nonconforming use or on the failure of a municipality to enforce its zoning ordinance at their own risk.

View the entire issue of In the Zone (pdf)

1Tri-County Landfill, Inc., v. Pine Township Zoning Hearing Bd., No. 176 C.D. 2013, --A.3d --- (Pa. Commw. Ct. 2014)

2The Court also affirmed the single judge order on appeal that the intervening objectors could not raise a certain issue decided by the trial court in favor of Tri-County, as the objectors did not cross-appeal, and the objectors did not adequately appeal the single judge's order to strike those sections of their brief.

3Important because "structures' are subject to the 40 foot height limitation in all zoning districts.

4First, a long period of time must pass during which the municipality fails to enforce a law when the municipality knew or should have known that illegal use was occurring on a property. Second, the land owner must act in good faith and rely upon the validity of the use throughout the proceeding. Third, the land owner has to make substantial expenditures and rely upon his belief that the use is permitted, and finally, the denial of the variance would impose an unnecessary hardship on the Applicant.

5Quoting Twp. of East Caln v. Zoning Hearing Bd. Of East Caln Township, 915 A.2d 1249, 1254 (Pa. Commw. Ct. 2007).

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