Tri-County Landfill, Inc. v Pine Twp. Zoning Hearing Bd., PICS Case No. 14-0051 (Pa. Commw. Jan. 9, 2014) Simpson, J. (65 pages).

COMMONWEALTH COURT

The Legal Intelligencer

LAND USE AND PLANNING

Zoning Approval • Dimensional Variance

Tri-County Landfill, Inc. v Pine Twp. Zoning Hearing Bd., PICS Case No. 14-0051 (Pa. Commw. Jan. 9, 2014) Simpson, J. (65 pages).

Trial court correctly affirmed the denial of Tri-County Landfill's requests for zoning approval for its proposed landfill despite Tri-County's contentions that doubt exists as to whether or not the ordinance definition of "structure" encompassed landfills. The trial court erred by failing to acknowledge that ambiguity, by failing to interpret the zoning ordinance in favor of the landowner as required by the Pennsylvania Municipalities Planning Code and by failing to address the alleged unconstitutional and exclusionary effect of the 40-foot height limitation in the zoning ordinance. Affirmed.

The property at issue had been zoned R-1 Residential Rural since the original zoning ordinance in 1976. Tri-County Industries and its related entities have conducted various landfill and transfer station activities at the site since 1975. Tri-County expanded the landfill area over the years without zoning approval and wished to expand again under the requested zoning approval. Additionally, Tri-County put in place a transfer station that did not conform with the R-1 district regulations, but is provided for in an industrial district. Use of a parcel as a dump or landfill or transfer station in an R-1 district requires zoning board approval as these activities are restricted to industrial zoning districts under the zoning ordinance.

In September 1990, DEP issued an emergency permit for a transfer station and in February 1992, Tri-County was issued a permit for the operation of the transfer station. Tri-County has continuously operated a transfer station on the property since September 1990 and has expanded buildings, operations, and added a new road. Pine Township was aware of these activities and did not stop the operation or expansion of the transfer station or require Tri-County to obtain any relief from the R-1 district regulations.

The trial court determined that the zoning board erred in finding that Tri-County abandoned its prior nonconforming landfill use but agreed with the zoning board that the proposed landfill was a "structure" as defined by the zoning ordinance and was subject to the 40-foot height restriction. The court also determined that the zoning board properly rejected Tri-County's request for a dimensional variance from the height restriction.

Based on the plain language of the definition of "structure" found in the zoning ordinance and the facts found by the zoning board regarding the components and composition of the proposed landfill, there was no error in the determination that the proposed modern landfill constituted a "structure." That §2201 of the ordinance contains a non-exhaustive list of examples of structures does not render it ambiguous. The plain, unambiguous language of the zoning ordinance can be reasonably read to encompass landfills within its broad definition of structures and it is unnecessary to resort to legislative intent.

The application of the 40-foot height restriction does not result in a de facto exclusion of landfill uses. The record supports the zoning board's conclusion that Tri-County did not meet its burden of showing the height limitation effectively excluded landfill use where objectors' engineer directly refuted Tri-County's assertions that it would not be financially feasible to construct and operate a landfill with a 40-foot height limitation.