Greenview Properties 862, LLC v. Hamilton Twp. ZHB & Hamilton Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Greenview Properties 862, LLC, :
Appellant :
: No. 799 C.D. 2020
v. :
: Argued: April 12, 2021
Hamilton Township Zoning Hearing :
Board and Hamilton Township :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, (P.) Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: May 26, 2021
Greenview Properties 862, LLC (Landowner) appeals from the July 13,
2020 order of the Court of Common Pleas of Monroe County (trial court), which
concluded that Landowner violated the Hamilton Township Zoning Ordinance
(Ordinance), by conducting a “Clean Fill Facility” on a 59-acre tract of land it owns in
Hamilton Township (Township). This appeal involves the interpretation of Section
402.1(c) of the Ordinance, and relatedly, whether the Ordinance prohibits Landowner’s
clean fill operation on property (Property) located in the Zoning District “A.”1
1
Pursuant to Schedule 1 of the Ordinance, the only permitted uses in Zoning District “A” are:
Single Family Residential (Use Class 1); Conservation (Use Class 6); Agriculture (Use Class 7);
Accessory Uses & Essential Services (Use Class 8); Conversions (Use Class 9); Related Residential
Uses (Use Class 11); Appropriate Public Uses (Use Class 12); Planned Residential (Use Class 14);
and Correctional Institutions (Use Class 15). (Hamilton Township Zoning Ordinance, Schedule 1.
(Ordinance No. 2008-02-11, Reproduced Record (R.R.) at 163a-64a.)
Section 402.1(c) of the Ordinance
In 2008, the Board of Supervisors of Hamilton Township amended
Section 402.1 of the Hamilton Township Zoning Ordinance by modifying the Use
Class 5–Industrial Zoning District. (Ordinance No. 2008-02-11, R.R. at 163a-64a.)
The 2008 amendment added subsection (c) to Section 402.1. Since the 2008
amendment, the following activities are only permitted in the Use Class 5–Industrial
Zoning District pursuant to Section 402.1(c) of the Ordinance:
The collection, processing, re-processing, and/or storage of
stone: rocks; soil; sand; wood; post-construction concrete,
masonry or asphalt; or similar materials. Such use shall be:
(1) conducted outside a completely enclosed building; (2)
located on the property such that there is a minimum setback
of 300 feet between the collection, processing, reprocessing,
and/or storage activities comprising that use and the lot line
of any dwelling; church, school or similar institution;
cemetery; public park; and public road right-of-way; and (3)
operated only between the hours of 7 a.m. and 6 p.m. The
applicant shall provide the Township with copies of all
required state and/or federal licenses and permits for review
with the security and maintenance of such license and/or
permits being a mandatory condition of such use.
(Hamilton Township Ordinance No. 2008-02-11, R.R. at 143a (emphasis added).
Landowner’s Purchase of the Property and Activities Thereon
The Property is owned by Landowner and is approximately 59 acres
located in Zoning District “A.” The Property was acquired by Landowner in August
of 2015. The members of Landowner, a limited liability company, are Michael Miller
and David Norris.
Contaminated soil had been deposited on the Property before Landowner
bought it. There was also a shale pit on the Property. In 2017, Landowner obtained a
2
National Pollution Discharge Elimination System (NPDES) permit2 from the
Pennsylvania Department of Environmental Protection (DEP) to raise the grade on
approximately six acres of the Property - from the rear shale pit towards Greenview
Drive. The NPDES permit required that the area of contaminated be soil capped with
a minimum of three feet of clean soil before the deposit of any other soil.
On June 3, 2017, Landowner entered into a “Clean Fill Facility Operation
and Maintenance Agreement” with three other parties: Earth Efficient Greenview,
LLC, Earth Efficient, LLC, and Greenview Management, LLC (also owned by Norris
and Miller). The Agreement called for the parties to operate a “Clean Fill Facility” on
the Property. (R.R. at 2037a.) Greenview Management, LLC was listed as the
“Manager” of the Facility, which was “authorized to sublicense the use and operation
of the Facility.” Id. Earth Efficient Greenview, LLC, was identified as the “Operator,”
which would take over the “operation, management and maintenance of the Clean Fill
Facility, including the construction of associated erosion and sedimentation control” so
that the business could “engage in the importing and exporting of clean fill pursuant to
Environmental Law and applicable local law, and the import and export of other
materials pursuant to applicable local laws as contemplated in this Agreement.” Id.
The “Whereas” clauses on page 2 of the Agreement indicate that the Facility was, at
that time, permitted to accept approximately 300,000 tons of clean fill for the remaining
life of the Facility and that the parties were exploring the option to expand the initial
NPDES permit to increase the permitted airspace of the Facility, and that Greenview
Management was to obtain additional permits to increase the airspace to accommodate
2
Permits for earth disturbance, including the importation of fill and which involve more than
one acre, must be secured through the Department of Environmental Protection (DEP). 25 Pa. Code
§102.5. Issuance of these permits are independent of, and not governed by, local municipal zoning
ordinances such as, in this case, Hamilton Township, but the activity is nonetheless subject to
municipal zoning ordinances, which regulate the uses permitted to be conducted on property.
3
an estimated 2.7 million tons of clean fill over the remaining life of the Facility. Id.Sections 2.5(x) and 2.6(i)(n) of the Clean Fill Agreement characterized the process
occurring at the Property as “accepting” and “storing” clean fill for resale. (R.R. at
2043a, 2045a.) The Agreement also provided that Landowner was to be compensated
for every truckload of fill brought onto the Property. (R.R. at 2047a.)
In January of 2018, Landowner obtained a modification of its 2017
NPDES permit to disturb an additional 14 acres (for a total of 20 acres) to further extend
the flat and level grade towards Greenview Drive. The modified NPDES permit
authorized Landowner to deposit hundreds of thousands of tons of more fill onto the
Property. The modified NPDES permit required that the final graded fill area be
planted with trees to stabilize it.
Between February 21, 2018, and June 4, 2018, 25,200 tons of soil from
New York City and New Jersey were delivered to the Property by 395 dump truck
deliveries. (R.R. at 1947a-2026a.)
Hamilton Township Zoning Officer’s Enforcement Notice
On March 22, 2018, after neighbors complained about the large number
of trucks going in and out of the Property,3 the Township Zoning Officer issued an
Enforcement Notice to Landowner, which described two alleged zoning violations and
the potential consequences of Landowner’s continued violation. Specifically, the
Enforcement Notice charged Landowner with violating Section 402.1(c) of the
Ordinance for collecting, processing, re-processing, and/or storing soil in a zone other
than the zone where such use is permitted, namely the Use Class 5 - Industrial Zone.
3
According to neighbors, the Property is in a quiet residential area. As the result of
Landowner’s operations, there has been daily truck traffic which created dust and noise, starting at 8
a.m. in the morning to 7 p.m. at night from Monday to Friday and sometimes on Saturday at 2:30 a.m.
(Notes of Testimony (N.T.) at 143, 147; R.R. at 2337a, 2341a.)
4
The Enforcement Notice also charged Landowner with violating Section 902.1 of the
Ordinance for failing to obtain a permit before placing a truck scale and a 14’ x 40’
scale house on the Property. The Enforcement Notice stated:
The use which [Landowner] and Earth Efficient Greenview,
LLC are currently undertaking at the subject property is an
industrial use, specifically the activity outlined in Section
402.1 (c) . . . .The activity which is being conducted is the
collection, processing, reprocessing, and/or storage of soil or
similar materials on a large scale, whereby construction
vehicles and hauling vehicles are being utilized to import soil
from out-of-state and in-state locations to the premises for
commercial gain. In part, the property at issue is being used
as a dumping or landfill site for soil brought from a state or
states other than Pennsylvania as a consequence of such state
or states prohibiting the landfilling or dumping or processing
or reprocessing and/or storage of such soil within their
borders.
Additionally, Article IX, Section 902.1 of the Zoning
Ordinance prohibits the erection, alteration, conversion of
any structure, building, or part thereof, until a zoning permit
has been issued by the Zoning Officer. [Landowner] and/or
Earth Efficient Greenview, LLC have erected a scale and
scale house structure on the site without first obtaining a
Zoning permit.
(Enforcement Notice at 1-2, R.R. at 164a-65a.)
The Enforcement Notice ordered Landowner to cease and desist use of the
Zone “A” Property for industrial purposes and to remove the truck scale and scale
house within two weeks of service of the Notice. Id. at 2, R.R. at 165a.
Proceedings Before the Board
Landowner appealed the Enforcement Notice to the Zoning Hearing
Board (Board), which granted party status to four neighboring property owners, based
upon the close proximity of each of their residences to the Property and the adverse
5
effects each of these parties stated they have experienced arising out of or from
Landowner’s ongoing fill operations on the Property. (Board Decision, at 8.) The
Board conducted over 28 evidentiary hearings during which it received more than 150
exhibits.4
Landowner argued to the Board that Section 401.2(c) of the Ordinance
was not applicable because its fill operation did not involve the “collection, processing,
reprocessing, and/or storage of” soil. Norris and Miller testified on behalf of
Landowner. Norris denied Landowner was conducting a clean fill enterprise for
commercial gain and attempted to convince the Board that its fill activity was used
solely for the purpose of leveling the grade for a tree farm and possibly a residential
development in the future. (N.T. at 1175-76; R.R. at 645a-46a.) Miller testified that
Landowner had purchased 1,200 saplings, and 800 trees were planted. (N.T. at 2164,
2219; R.R. at 1325a, 1404a.) Landowner also presented photographs of planted trees.
On cross-examination, Miller conceded that, as part of its NPDES permit, Landowner
was required to record a Declaration and Restriction of Covenants applicable to the
Property, including provisions pertaining to trees that need to be planted, and the final
grade. (N.T. at 2109; R.R. at 1270a.)
Landowner offered no testimony demonstrating a reason or need to import
vast quantities of fill to accommodate a tree farm and admitted that it has no present
development plans for the Property. Miller testified that Landowner was entitled to
expand its operations even further to cover more acreage, so long as it went through
the permitting process. (N.T. at 2300; R.R. at 1485a.)
Alternatively, Landowner argued that the terms “collection,”
“processing,” “reprocessing” and “storage” as used in Section 402.1(c) of the
4
The transcript is over 2,500 pages and the Reproduced Record filed in this Court is 12
volumes.
6
Ordinance were ambiguous because they have multiple definitions and, thus, must be
interpreted either: (1) by reference to the use of similar terms in other Township
ordinances and other statutes governing solid waste and clean fill, including the Solid
Waste Management Act;5 or (2) by applying the least restrictive interpretation of the
terms as required by section 603.1 of the Pennsylvania Municipalities Planning Code
(MPC).6
The Township countered by introducing the Clean Fill Facility Agreement
and evidence of the ongoing importation, collection, and storage of fill and the
landfilling of the Property. The Township demonstrated that in some locations, over
40 feet of fill was deposited. (R.R. at 2450a.) The Township also offered exhibits and
testimony of the scale of the soil operation under the NPDES initial permit and under
the modified NPDES permit. An engineer from the Monroe County Conservation
District testified that, based on his calculations, the first permit allowed for 65,000
cubic yards of soil. (N.T. at 62; R.R. at 2243a), and that under the modified permit
there would be an additional 485,000 cubic yards of soil deposited on the Property.
(N.T. at 68; R.R. at 2249a.) The Township presented evidence of the number of
truckloads that would be needed to bring in the amount of soil authorized by the
modified NPDES permit. Nate Oiler, the Township’s engineer, calculated that the
average number of cubic yards per each triaxle truck was 18, thus 26,111 truckloads
5
Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§6018.101-6018.1003.
6
Act of July 31, 1968, P.L. 805, as amended, added by Act of December 21, 1988, P.L. 1329,
53 P.S. §10603.1. Section 603.1 states:
In interpreting the language of zoning ordinances to determine the
extent of the restriction upon the use of the property, the language shall
be interpreted, where doubt exists as to the intended meaning of the
language written and enacted by the governing body, in favor of the
property owner and against any implied extension of the restriction.
7
would be authorized by the modified NPDES permit. As per Oiler’s calculations, this
averaged to 12.28 trips per day, which over 365 days would result in 4,380 truckloads.
Oiler testified that at that rate of delivery, it would take Landowner another six years
to complete the authorized fill. See Board Summary of Facts at 15-16.
The Township also introduced testimony from Oiler about the need for
grading on the Property. Oiler testified that there was no reason that a landowner would
need to import that much soil to grade a lot for a tree farm. (N.T. 385-86; R.R. at 485a-
86a.) He further testified that there was no pending land development plan before the
Township. (N.T. at 388; R.R. at 488a.)
Board Findings of Fact and Decision
The Board denied Landowner’s appeal from the Enforcement Notice. The
Board rejected Landowner’s claim that it was merely depositing soil in order to change
the grade of the Property for purposes of a tree farm or for future development. Instead,
the Board found that Landowner was “operating a landfill business for commercial
gain” and that this was not permitted in Zoning District “A.” It found in Finding of
Fact (F.F.) 60:
The Board concludes based upon the record that
[Landowner] is operating a landfill business for commercial
gain since [Landowner] is being compensated for each and
every truckload of fill brought to, deposited on, and
thereafter processed and stored on the Property. The
commercial enterprise is the delivery and importation of fill
to the Property for compensation.
(Board Decision, 12/3/19, F.F. No. 60; R.R. at 235a.)
The Board explained its reasoning in Finding of Fact 61:
The evidence is unequivocal that [Landowner] is not
importing fill onto the Property for the immediate purpose of
grading the Property for a development to be constructed by
8
[Landowner]. Rather, [Landowner] has admitted that it has
no present development plans for the Property nor has
[Landowner] submitted a Land Development Plan proposal
to the Township for the development of the Property
subsequent to the completion of the fill operation. The fill
operation at present appears to be a distinct business operated
by [Landowner]. Landowner’s plans to “farm” Christmas
trees placed on the Property appears to be an interim concept
with no final development plan contemplated by
[Landowner] at this time. [Landowner] has not produced any
evidence that after the fill operation is complete the Property
in the fill area will be developable or developed and
improved.
(Board Decision, 12/3/19, F.F. No. 61; R.R. at 235a.)
Regarding Landowner’s contention that the terms “collection,”
“processing,” “reprocessing,” and/or “storage” in Section 402.1(c) of the Ordinance
were ambiguous, the Board rejected this claim as well. The Board found these terms
were unambiguous and clearly defined using dictionary definitions. The Board found
that, despite Landowner’s urging, it was, therefore, unnecessary to resort to alternative
methods of statutory interpretation. Using the ordinary and regular meaning of the
words of Section 402.1(c) of the Ordinance based upon the definitions set forth in
Webster’s New College Dictionary, Third Edition, the American Heritage Dictionary
of English Language, Fifth Edition, and the Collins English Dictionary—Complete and
Unabridged, 12th Edition 2014, the Board listed and recited the definitions of
“collection,” “process,” “reprocess,” and “storage.” Applying these dictionary
definitions of the terms, the Board held that it was clear that Landowner’s Clean Fill
Facility involved the “collection,” “processing,” and “storage” of fill on the Property.
At page 31 of its Decision, the Board found as follows:
Using the dictionary definition of the term “collection” it is
clear that the fill operation on the Property involves: (1)
9
“collection” as it involves the “deposit” of fill on the
Property; (2) a “process” where the deposited fill is first
evaluated, tested and graded to comply with the requirement
imposed by the [DEP] in the [modified NPDES permit] and
thereafter is planted with Christmas tree seedlings as required
by the NPDES Permit; and (3) the “storage” of dirt, concrete
and the other components of the fill deposited on the
Property.
(Board Decision, 12/3/19, at 31; R.R. at 224a.)
The Board went on to conclude:
Accordingly, since “deposit” is included in the dictionary
definition of the term “collection” and since the fill
undergoes a “process” as defined in the dictionary involving
testing, grading, stabilization, and tree planting and the fill is
long-term “storage” as defined in the dictionary, the Board’s
conclusion is that the “collection,” “processing,” and
“storage” prongs of Section 402.1 Use Class 5 are triggered
by [Landowner’s] fill operation. Since collection, processing
and storage of stone, rocks, soil, post-construction concrete,
masonry and asphalt are expressly designated in Section
402.1 Use Class 5, that Use is permitted only in the Industrial
District and the Property is entirely within Zoning District A,
the Board must deny [Landowner’s] appeal and find that
[Landowner] is in violation of Section 402.1 Use Class 5 of
the Ordinance as alleged in the Enforcement Notice.
(Board Decision, 12/3/19, at 31-32; R.R. at 196a.)
The Board concluded that Landowner’s Clean Fill Facility was allowed in
the Industrial Zone, but was not one of the uses permitted in Zoning District “A,” and
the fact that Landowner was being compensated for each truckload of fill brought onto
10
the Property “unequivocally demonstrated” that Landowner was “operating a landfill
business on the Property” for commercial gain.7 Id. at 32-33; R.R. at 197a-98a.
Landowner’s Motion to Take Additional Testimony
Landowner appealed to the trial court and filed a Motion to Take
Additional Testimony. The trial court held a hearing on the motion. Landowner argued
that, contrary to the Board’s finding that the Ordinance unambiguously applied to its
activities, the Ordinance unambiguously did not apply to its activities on the Property
because the “permanent placement of fill” is different from the “collection” of it. (R.R.
at 261a.) In support of its interpretation, Landowner sought to present additional
evidence that the Township enacted Section 402.1(c) of the Ordinance because it was
concerned about “material processing” that was occurring outside of the Industrial
Zoning District. (R.R. at 264a.) Landowner argued that other property owners are
depositing permanent fill and not being cited for it. As an example, Landowner’s
counsel referenced the Ray Price Honda site where the landowner was allowed to bring
“an enormous amount of fill” on the property without a zoning permit. (R.R. at 268a.)
In the course of that hearing, the trial court hypothetically posited the
question as to whether Section 402.1(c) of the Ordinance prevented a homeowner from
using a “bag of mulch” in his garden because it would be considered as “collecting a
deposit of soil,” especially if the homeowner’s property was outside the Industrial
Zone. Landowner’s counsel responded, “that’s the way [the Board is] interpreting it,
so broadly that, [the Ordinance] could apply to [filling in my garden], which renders it
ambiguous and therefore the rules [of statutory construction] kick in.” (R.R. at 285a.)
7
The Board also concluded that Landowner violated Article IX, Section 902.1 of the
Ordinance by placing a truck scale and scale house structure on the site without first obtaining a
Zoning Permit. That issue is not before us.
11
By order and decision dated March 4, 2020, the trial court denied Landowner’s Motion
to Take Additional Testimony.
Trial Court Decision
The trial court affirmed the Board. Observing that the Board’s
interpretation of its own Ordinance is to be given great weight, the trial court rejected
Landowner’s argument that the Ordinance was ambiguous. The trial court found that
the Board’s conclusion the Ordinance was not ambiguous was supported by the plain
language of the Ordinance. (Trial ct. op. at 10.)
The trial court next addressed Landowner’s argument that Section
402.1(c) of the Ordinance did not apply to its activities. Landowner asserted that it
would be absurd to apply Section 402.1(c) of the Ordinance to the permanent placement
of fill when the grading of the Property was in connection with an allowed zoning use.
The trial court addressed the bag of mulch scenario. It explained that whether the
Ordinance applies to the “collection,” “processing,” “reprocessing,” and/or “storage”
of soil must be determined by examining the principal use of the land, not an accessory
use. Id. at 11. The trial court noted that because the Board found that Landowner’s
primary activity was the commercial operation of the Clean Fill Facility, Landowner
was required to demonstrate that this finding was not supported by substantial
evidence.
The trial court found that there was ample evidence to support the Board’s
findings. The trial court determined, based on extensive testimony and the multitude
of exhibits generated during the Board’s hearings, that it was “obvious” that
Landowner was “selling a parking place for soil and the principal use of the [P]roperty
[was] a landfill” and that the “Clean Fill Agreement’s obvious purpose was to store fill
on the Property for compensation.” Id. at 13-14. The trial court concluded that the
12
Township’s evidence proved that Landowner’s actual objective was not a tree farm. It
further concluded that the evidence of record reflected the Board’s conclusion that
Landowner was required to plant trees on the giant mound at the completion of its
operations, to comply with its NPDES permit, with the real objective being to conduct
a profitable landfill. Id. at 14.
Analysis
On appeal,8 Landowner raises three issues, which we have condensed into
two: (1) whether the trial court erred or abused its discretion by concluding that the
Board’s finding that Landowner’s principal use of the Property was a Clean Fill Facility
was supported by substantial evidence; and (2) whether the trial court erred or abused
its discretion by affirming the Board’s conclusion that Section 402.1(c) of the
Ordinance unambiguously applies to the permanent placement of fill for a grade
change.
Substantial Evidence
Landowner argues that the Board’s finding that Landowner’s principal use
of the Property is a Clean Fill Facility/landfill was not supported by substantial
evidence. It contends the record instead supported the conclusion that the importation
and deposit of fill was a temporary activity for the construction of the principal end use
of a tree farm on the Property. Landowner argues that the evidence demonstrated that
it raised a portion of the Property to final grade and planted trees over the ex-shale pit
8
The Commonwealth Court’s scope of review in zoning cases where, as here, the trial court
did not take any additional evidence, is limited to determining whether the Board committed an error
of law or a manifest abuse of discretion. De Cray v. Zoning Hearing Board of Upper Saucon
Township, 599 A.2d 286 (Pa. Cmwlth. 1991). The Board abuses its discretion if its findings are not
supported by substantial evidence, i.e., such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 462
A.2d 637 (Pa. 1983).
13
area and its principals testified repeatedly they intend to use the Property as a tree farm.
Landowner stresses that both principals, Miller and Norris, testified under oath that
they purchased the Property and intended to start a tree farm, and presented evidence
that some trees had been planted. Landowner also asserts that it presented evidence
that trees are required to be planted in accordance with the deed restriction. Landowner
claims the Board ignored this evidence.
The Board, as the factfinder, is the sole judge of credibility with the power
to resolve conflicts in the testimony and to reject even uncontradicted testimony if it
should find said testimony lacking in credibility. The Piper Group, Inc. v. Bedminster
Township Board of Supervisors, 992 A.2d 224, 240 (Pa. Cmwlth. 2010).
Here, ample evidence credited by the Board established that Landowner
was engaged in a large scale commercial clean fill operation on the Property. The
Township proved Landowner imported close to half a million cubic yards of fill and
was compensated for each truckload, and that Landowner had secured the necessary
NPDES permits to continue the operation for another five to six years. The Clean Fill
Facility Agreement also leaves little doubt that Landowner was conducting a “Clean
Fill Facility” on the Property as the principal use.9 The Agreement designated a
manager and operator of the Facility. The Agreement stated that the Clean Fill Facility
would be used for “storing” clean fill in exchange for compensation. The Agreement
provided that Landowner would use its best efforts to obtain the permits necessary to
increase the capacity of the Facility to 2.7 million tons by expanding the area of the
9
In light of this conclusion, we also reject Landowner’s argument that the Board erroneously
considered other factors not expressly contained in Section 401.2(c), such as lack of a development
plan, the fact that Landowner received compensation for each truckload dumped, the volume of
material dumped, the origin of the clean fill, truck traffic, and the existence or non-existence of a
highway occupancy permit. These additional observations merely supplemented the copious
evidence that Landowner was operating a Clean Fill Facility on the Property.
14
Property to be disturbed. (R.R. at 2042a.) The Agreement included a customer non-
solicitation clause. Id. While the Agreement stated “the anticipated eventual use” of
the Facility was as a tree farm, (R.R. at 2037a), this does not detract from the then-
current principal use of the Property as a Clean Fill Facility. And, although
Landowner’s witnesses testified that they intended to establish a tree farm, they never
offered any explanation as to why it was necessary to raise the grade of the Property
nearly 50 feet in order to accomplish that.
Simply put, the Board did not find Landowner’s witnesses credible as to
their true intentions for the Property. The trial court affirmed the Board’s conclusion,
finding it was supported by substantial evidence. We discern no error on the part of
the trial court.
Ambiguity
Next, Landowner argues that the trial court erred by affirming the Board’s
conclusion that Section 402.1(c) of the Ordinance unambiguously applies to the
“permanent placement of fill” to “change the grade” of a property. (Landowner’s Br.
at 7.) It contends that, contrary to the Board’s conclusion, Section 402.1(c) was never
intended to preclude mere “grade changes” outside the Industrial Zone. It argues that,
when the legislative history is analyzed, the Ordinance was clearly intended to address
material stock-pile processing and not the permanent placement of fill to change the
grade. Specifically, Landowner faults the trial court for refusing to consider evidence
concerning the factual circumstances in which Section 401.2(c) of the Ordinance was
enacted to decipher its meaning.
We find no merit in Landowner’s position. To begin, the factual premise
underlying Landowner’s argument is false. The Board did not find Section 402.1(c)
unambiguously precludes the deposit of clean fill for the purpose of “changing the
15
grade” of the Property. By distorting the Board’s finding and insisting that it was only
depositing fill to change the grade of the Property, Landowner is essentially addressing
an issue which is not before us. The Board rejected Landowner’s explanation of why
it was depositing thousands of tons of fill on the Property. It did not believe Landowner
was merely depositing fill to change the grade of the Property for a tree farm.
Therefore, whether the Ordinance applies to the deposit of fill for mere “grade changes”
is not relevant. Instead, the proper inquiry is whether the Board erred in finding that
the Ordinance precluded the operation of a commercial Clean Fill Facility outside the
Industrial Zoning District.
The rules of statutory construction are summarized in Kohl v. New
Sewickley Township Zoning Hearing Board, 108 A.3d 961, 968-69 (Pa. Cmwlth.
2015), as follows:
The primary objective of statutory interpretation is to
determine the intent of the enacting legislation. Section 1921
of the Statutory Construction Act of 1972 (Act), 1 Pa.C.S.
§1921. In pursuing that end, we are mindful that a statute’s
plain language generally provides the best indication of
legislative intent and, thus, statutory construction begins with
examination of the text itself. Malt Beverages Distributors
Association v. [Pennsylvania] Liquor Control Board, 918
A.2d 171 (Pa. Cmwlth. 2007) (en banc), aff’d, 974 A.2d 1144([Pa.] 2009).
In reading the plain language of a statute, “[w]ords and
phrases shall be construed according to rules of grammar and
according to their common and approved usage.” Section
1903(a) of the Act, 1 Pa.C.S. §1903(a). With respect to
zoning matters, “[u]ndefined terms are given their plain
meaning, and any doubt is resolved in favor of the landowner
and the least restrictive use of the land.” Caln Nether Co.,
L.P. v. Board of Supervisors of Thornbury Township, 840
A.2d 484, 491 (Pa. Cmwlth. 2004).
16
Further, where the words of the ordinance are ambiguous,
courts construe the ordinance in favor of the landowner.
Lench v. Zoning Board of Adjustment of City of Pittsburgh,
13 A.3d 576, 579 (Pa. Cmwlth. 2011). A zoning ordinance
is ambiguous if the pertinent provision is susceptible to more
than one reasonable interpretation, Adams Outdoor
Advertising, L.P. v. Zoning Hearing Board of Smithfield
Township, 909 A.2d 469, 483 (Pa. Cmwlth. 2006), or when
the language is vague, uncertain, or indefinite. Barasch v.
Pennsylvania Public Utility Commission, 532 A.2d 325, 332
([Pa.] 1987). Finally, it is well settled that “a zoning hearing
board’s interpretation of its own zoning ordinance is entitled
to great weight and deference. Such deference is appropriate
because a zoning hearing board, as the entity charged with
administering a zoning ordinance, possesses knowledge and
expertise in interpreting that ordinance.” Risker v. Smith
Township Zoning Hearing Board, 886 A.2d 727, 731 (Pa.
Cmwlth. 2005). Similarly, “because [a township’s zoning
officer] is charged with the administration and execution of
the [ordinance], his interpretation of the ordinance is entitled
to deference and should not be disregarded unless shown to
be clearly erroneous.” McIntyre v. Board of Supervisors of
Shohola Township, 614 A.2d 335, 337 ([Pa. Cmwlth.] 1992).
Here, the Board strictly followed the rules of statutory construction and
interpretation. The Board found the Ordinance did not define the words used in Section
402.1(c), namely, “collection,” “processing,” “reprocessing,” and “storage.” The
Board used the ordinary and regular meaning of those words based upon their common
and approved everyday usages. The Board did not find the terms ambiguous. The trial
court properly affirmed the Board’s decision after performing the same statutory
construction analysis. Application of different methods of statutory construction, such
as ascertaining legislative intent, were unnecessary given the trial court’s conclusion
that Section 402.1(c) was unambiguous. See Kohl.
17
Alternatively, from what this Court can discern, Landowner argues that
the trial court erred by not finding the Ordinance ambiguous after the court recognized
that the permanent placement of a bag of mulch in a garden, for example, would not
violate the Ordinance because the placement of mulch would be in connection with an
approved use. This so-called judicially created exemption, according to Landowner,
should have been applied in an analogous manner to analyze Landowner’s permanent
placement of fill deposited in connection with a tree farm, an approved use in Zoning
District A. Landowner suggests that there is an unwritten “exemption” in Section
402.1(c) which demonstrates there is an ambiguity.10 We must reject Landowner’s
attempt to establish an ambiguity by reference to a statement made by the trial court
during a hearing on a motion to present additional testimony.
First, Landowner completely ignores the fact that the Board found that
Landowner was not merely “raising the grade” of the Property as part of a temporary
construction phase of a future land development or tree farm. The Board found that
Landowner was unequivocally operating a commercial Clean Fill Facility on the
Property. Critically, Landowner does not dispute that Section 401.2(c) of the
Ordinance prohibits the operation of a commercial Clean Fill Facility outside the
Industrial Zone. This effectively ends the inquiry because whether the terms
“collection” and “storage” can be interpreted to include depositing of a bag of mulch
in a residential garden seems to this Court to be beside the point. The salient point
rather is that the Board found that Section 401.2(c) of the Ordinance prohibits the
operation of a Clean Fill Facility outside the Industrial Zone and that Landowner was
10
This is Landowner’s only argument made in support of its contention that the Ordinance is
ambiguous. Its prior arguments before the Board and trial court that the terms “collection” and
“storage” have multiple definitions, or are terms of art, are not argued in this appeal.
18
doing just that. As we have just explained, that finding was supported by ample
substantial evidence.
Moreover, we do not agree that the trial court acknowledged any
“exemption” to Section 402.1(c) of the Ordinance. There was no independent finding
by the trial court of an “exemption” for properties outside of the Industrial Zone for
placement of fill as a principal use. The trial court simply cited the “bag of mulch”
example and recognized that a residential property owner can incorporate a bag of
mulch in his garden without having the same be a principal use of a landfill or Clean
Fill Facility, as the same is merely an accessory activity to the permitted residential
use. The incidental placement of soil, for example, by a farmer, including a tree farmer,
is one circumstance where it could be argued that the activity should not be
characterized as the collection or storage of soil. However, that illustration cannot be
extended to the situation presented here where the principal use of the Property was
without a doubt a Clean Fill Facility, the sole purpose of which was to store clean fill.
Conclusion
Upon review of the evidence of record and the relevant statutory and case
law, we discern no error of law or abuse of discretion, and thus, the order of the trial
court is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Greenview Properties 862, LLC, :
Appellant :
: No. 799 C.D. 2020
v. :
:
Hamilton Township Zoning Hearing :
Board and Hamilton Township :
ORDER
AND NOW, this 26th day of May, 2021, the July 13, 2020 order of the
Court of Common Pleas of Monroe County is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge