Agenda - Planning Commission - 04/03/2014

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February 25, 2014 I Volume 8 I Issue 4 Zoning Bulletin of nonconfounring uses, Tri-County expanded the landfill area over the years without zoning approval. In October 2010, Tri-County sought to expand the landfill again and filed an application with the Township Zoning Hearing Board (the "ZHB"). Tri-County sought to expand the area of the landfill from approximately 26 acres to a total of 96 acres. Tri-County also sought to construct the landfill to a height of 140 feet. The ZHB ultimately determined that in 1990, Tri-County had abandoned its prior nonconforming landfill use. The ZHB had also concluded that even if the landfill use could continue as a prior nonconforming use in the R-1 district, the proposed landfill was a "structure" subject to a 40-foot height restriction, and that Tri-County was not entitled to a dimensional variance from that height restriction. Tri-County appealed. In addition to appealing the ZHB's determinations, Tri-County also argued that the zoning ordinance's 40-foot height limita- tion effected a de facto (i.e., in reality) exclusion of landfills in the Town- ship (since, as Tri-County argued, this was the only available site for landfills in the Township). As such, Tri-County argued that it was entitled to a site -specific remedy, allowing it to continue operations at the site. The court determined that the ZHB erred at to its determination that Tri- County had abandoned its prior nonconforming landfill use. However the court agreed with the ZHB that the landfill was a "structure" subject to the 40-foot height restriction, and that Tri-County was not entitled to a variance from that restriction. Finally, the trial court rejected Tri-County's argument that the zoning ordinance's 40-foot height limitation effected a de facto exclusion of landfills. Tri-County appealed. DECISION: Judgment of court of common pleas affirmed. The Commonwealth Court of Pennsylvania affirmed the trial court's determinations. The court held that a landfill was a "structure" under the Township's zoning ordinance. Section 2201 of the zoning ordinance defined the term "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, review- ing stand, platform, staging, observation tower, radio tower, water tank, trestle, pier, wharf, open shed, coal bin, shelter, fence, wall and a sign. The court found that, contrary. to Tri-County's assertions, the zoning ordinance's definition of "structure"' was not ambiguous. Rather, the court found that under the plain language ..of the definition, and given the components and composition of the proposed landfill, the proposed landfill fell within the unambiguous plain language of the definition of "structure" as it was a "modern landfill," which was to be highly engineered and consist- ing of multiple, sophisticated layers of liners, as well as a leachate collec- tion system and a gas extraction system. Tri-County had pointed to the fact that the ordinance specifically listed examples of structures. Tri-County had argued that since "landfill" was not on that list, it was not a "structure." The court rejected that argument, find- ing the ordinance's list was nonexhaustive. 8 © 2014 Thomson Reuters