Monday, April 10, 2017

How the Zoning Ordinance dictates the course Synagro's Site Plans for a biosolids plant in Plainfield Township will take moving forwards - uses and variances

Artist's conception of Synagro's two proposed sites (Click to enlarge)

1. The Zoning Hearing Board, Uses and Variances

If you have ever attended your town's Zoning Hearing Board ("ZHB") for a variance hearing, you may have walked away thinking "Pffft, that's a kangaroo court!  They just vote the way they want to and don't consider the evidence."  Maybe you are lucky and your ZHB isn't run that way.  The fact of the matter is, it is your local court - the ZHB is a "quasi-judicial" body and its decisions are appealed to the court of common pleas.  Testimony is under oath, there is an official transcript, and exhibits are put into evidence.  If you remember nothing else, remember that the record of the ZHB's hearing is the most critical element of the ultimate outcome of your case either for or against a matter heard by the ZHB.  The reason is, the vast majority of appeals of the ZHB's decisions do not allow any new testimony or evidence to be entered.  They are appealed on the basis of an abuse of discretion or an error of law.  Thus, during the ZHB hearing, any objectors need to appear and speak to put their objections into the record.  Any supporting documentation should be entered as an exhibit - you must request the board to do this and not assume that something you left on the table will become an exhibit.  And, objectors are able to cross examine witnesses.

While you may believe your town's ZHB is a kangaroo court, if evidence and/or testimony is put into the record and the ZHB does not make a defensible determination based on the record, that decision can be overturned on appeal.  This is where the strength of opposition testimony, evidence, and cross examination come into play.  Sadly many towns allow their ZHB's to be dysfunctional, and force residents to fend for themselves;  in these situations, the only way to get a fair hearing is to hire an attorney so the ZHB knows you are serious.  Plainfield Township has in recent history been one of these towns.  In fact, if not for the ZHB's granting of an unjustified and indefensible "use variance" (explained below) in 2014 that was related to a natural gas pipeline being extended to Waste Management's property, Synagro would likely not even be pursuing the Waste Management sites.  Natural gas is not only an alternate fuel now, it will be the only fuel source for Synagro once the landfill closes and ceases to generate methane.  The availability of natural gas means Synagro could be here 40, 50 years or more. Corrupt behavior has consequences.  "Corrupt: change or debase by making errors or unintentional alterations."  When Waste Management requested this variance in 2014 ostensibly so it could receive $2m in state grants to convert its trucks to natural gas, don't you think they had this little sludge factory in the hopper?  Come on now...  Cha-ching!!!  Look at the green multiplying while the surrounding area gets the brown.  Note: Some in the community have incorrectly stated "because WM was granted that 2014 variance it means now they can add uses and do whatever they want on that property."  If someone tells you this, inform them they are full of shit - variances are on a case by case basis and not precidential and you read it on the poop blog.  Unfortunately the Zoning Officer incorrectly took this position initially.

"Standing" determines the weight the ZHB may give your objections, and is often determined by how far you live from the location of the property that is requesting zoning relief (the variance).  In a case like Synagro, where odors, suspended particulates, and waste water disposed of in creeks may affect citizens far from the site, standing may be more easily granted.  At the end of the day, the ZHB should allow all objectors to speak, and their testimony given weight determined by their location.

The Zoning Hearing Board, the Zoning Ordinance, the Planning Commission, the Comprehensive Plan - these are all provided for and procedures governed by the PA Municipalities Planning Code ("MPC").  Along with these procedures are specific time frames in which advertising, decisions, actions and responses must take place. Plainfield Township, Wind Gap and Pen Argyl have a joint Comprehensive Plan, which is an advisory document that lays out the vision for land use and economic development in the community(ies).  The Zoning Ordinance should ideally implement this vision, and is statutory - it's articles and standards shall be enforced by the supervisory body through the Zoning Officer.  Variances or relief from the standards is administered by the ZHB, which also hears appeals of the Zoning Officer's decisions.

1.a Uses (Principal Use)

The land use envisioned in the Comprehensive Plan is implemented through the creation of zoning districts.  In "Euclidean" zoning, uses are listed for each district that are compatible with each other and ideally do not adversely impact uses in adjacent districts.  This is an important consequence of your community adopting zoning - you give up the right to host certain uses on your land, in exchange for a "greater good" of compatibility of uses in a well designed community.  In PA, there are 1) Uses Permitted by Right, 2) Special Exception Uses, and 3) Conditional Uses.  A use Permitted by Right is a use that the ordinance explicitly permits.  As long as the proposed project conforms to all the ordinance performance standards, setbacks, etc the landowner is entitled to develop that use.

A Special Exception Use is often a use that the Zoning Officer determines is similar in character to the permitted by right uses in that district, but there may also be a list of Special Exception Uses for the zoning district.  The utility of a Special Exception is that it permits one or more conditions to be placed on the Applicant to protect the health safety and welfare of neighboring residents.  The Planning Commission makes recommendations, and the Zoning Hearing Board via a hearing hears testimony, considers the Planning Commission's recommendations, and determines whether any conditions will be placed on the proposed project (eg operating hours, special screening, security measures, etc).  A Conditional Use is identical in spirit and is reviewed and approved in the same manner as a Special Exception Use, except the supervisory body assumes the role of the Zoning Hearing Board.

1.b Accessory Uses

Each zoning district has a list of accessory uses.  An accessory use is either explicitly permitted, or one that is customary in support of a Principal Use.  For example, a garage would be an accessory use in a rural zoning district.  For a gas-to-electricity conversion plant (eg Green Knight Energy Center), the switch gear that delivers the electricity to the grid is an accessory use.

2. Variances

A variance is an approved deviation from the hard and fast standards of the Ordinance.  The MPC specifies criteria that every variance in every municipality in the the state must satisfy in order to be granted.  This sounds objective, but sadly the knowledge is often lacking at the local level to properly evaluate the criteria and therefore carry out the dictates of the MPC.  This is why making the record is so critical - in case it is necessary to get a higher authority to overturn a poorly rendered decision.

2.a Variance criteria

Under the MPC, the Zoning Hearing Board "may grant a variance, provided that all of the following findings are made where relevant in a given case:
  1. That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located.
  2. That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable reasonable use of the property.
  3. That such unnecessary hardship has not been created by the appellant.
  4. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.
  5. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue."
2.b The difference between Use Variances and Dimensional Variances

There are two kinds of variances, a Use Variance and a Dimensional Variance.  A Use Variance is needed if the proposed use is prohibited or not provided for, for example a garage in the front yard or a use in a zoning district where it is neither a permitted use or similar to one.  Every use must be provided for somewhere in every municipality with some exceptions, or the ordinance could be found to be "exclusionary".  If the use proposed is permitted elsewhere but not in the district you target, you need a Use Variance.

A Dimensional Variance is what it sounds like - a request for a building higher than permitted, a building or improvement that is a few feet in violation of a yard setback.

2.c De Minimus Variances

If the relief requested by a Dimensional Variance is minor, the Courts have allowed for the strict Ordinance requirements of height, setback, area etc to be deemed met, as long as there is not shown a detriment to the public, health safety and welfare.  For example, a 25' setback is required, but the proposed use is only setback 24.5'.  Building height will be 36' and the Ordinance limit is 35'.  There is no prescribed percentage in the MPC or law of what constitutes de minimus.  Research of case law shows it typically to be less than 5%, but a 10% deviation was found to be de minimus in the Common Pleas Court of Delaware County case Renzi v. ZHB Concord Township.

3. The difference in how PA case law treats Use and Dimensional Variances

Use variances are rarely granted - less than 10% is a reasonable measure - for the simple reason they arise when a proposed use violates the intent of the Ordinance.  Dimensional Variances are more commonly granted - perhaps 60 to 70% of the time by a ZHB that is functional.  Note that the criteria above are used for both.  However, there has been some judiciary tweaking and differentiation of the standard of "unnecessary hardship" through the years, between one and the other.

In the 1998 seminal opinion of Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh , the PA Supreme Court found that when determining hardships in the case of Dimensional Variances, the following may be considered:
  • Economic detriment if the variance is denied
  • The financial hardship required to bring the building into strict compliance with the Ordinance
You should ask, does Hertzberg mean Dimensional Variances can be handed out like cotton candy merely by showing not being granted a variance will create a financial burden?  No - Hertzberg involved re-purposing an old vacant building for a new use as evidenced by this quote in the Court's opinion:
"To hold otherwise would prohibit the rehabilitation of neighborhoods by precluding an applicant who wishes to renovate a building in a blighted area from obtaining the necessary variances."
In other words, to obtain a Dimensional Variance it is not sufficient for the Applicant merely to demonstrate that he will incur a financial hardship if he can't do what he plans to with the property.

4. How Synagro has been affected thus far by Uses and Variances

In its first Site Plan for its plant in the Commercial Industrial zoning district, submitted October 31, 2016, Synagro stated it was an "Agricultural Use" - a Permitted by Right use.  The Zoning Officer responded with a letter indicating he felt this is not an agricultural use (it clearly is not), but is similar to Permitted by Right uses of recycling (which is also not true - recycling in the Ordinance is paper, glass, metal, etc).  Since he ruled (which stands unless an appeal is filed with the ZHB) that it is not identical to a permitted use, but similar, he found that it is a Special Exception Use.  Following Synagro's appearance before the Planning Commission, the Zoning Officer changed course and determined that Synagro's use is Permitted by Right in the Solid Waste district, and therefore can not permitted to be in the Commercial Industrial zone as "similar" to any listed use.  Note: In Euclidean zoning the "best fit" must be chosen across all zoning districts when determining which use in the Ordinance matches the proposed use.  Synagro's use was planned for and permitted to be in the Solid Waste zone as far back as the 1989 Ordinance.  Thus, the Site Plan for the CI district is technically no longer a Special Exception, but rather a Permitted by Right use but in a different zoning district.

Synagro submitted a Site Plan on March 31, 2017 for a site in the Solid Waste district, so this is a Permitted by Right use and will not be heard at all by the Zoning Hearing Board unless Synagro needs one or more variances - which this blogger believes is the case.  The significance of this is twofold - most importantly, if a required variance is denied it would stop the project.  Secondly, the court appeals process described in 1. above will be available to objectors if one or more variances were to be approved.  The ZHB issues an opinion within 45 days of a decision, and there is a 30 day period to appeal the written decision.

Synagro's tabled Site Plan is for a use that has been determined to be not permitted on the target site, so a use variance is needed.  Also, it would be a second Principal Use on the site WM uses for its Administrative and trucking operations - a second use variance.  Additionally, only 3.7 acres is provided for in the Site Plan, and 5 acres is required, so a third (dimensional) variance is needed.

Synagro's new Site Plan submitted March 31, 2017 has yet to generate an initial response from the Zoning Officer, which may contain findings that Synagro requires one or more variances..  There is a 15-day time limit, which would place the deadline for his response approximately Friday April 14.

Click here for an analysis of the variances this blogger believes Synagro's March 31 Site Plan will generate, as well a first glimpse of how the variance criteria in 2.a may be argued before the ZHB

(An understanding of everything above is needed to understand the course forward for both Synagro's use as well as any variances that are required)

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