Friday, April 14, 2017

Plainfield Township rejects Synagro permit request - issues scathing 16-page response letter to new biosolids plant application

The Easter Bunny lays an egg on Synagro's latest site plan

Synagro first filed a Site Plan in October 2016 to locate a biosolids processing facility where it is not permitted in Plainfield Township.  Synagro filed an updated version of this plan in December, and was informed shortly afterwards that this Site Plan requires two Use Variances.  The plan has been tabled since that time and is scheduled to be continue to be reviewed at the May 15, 2017 Planning Commission meeting.

Proposed Synagro sites depicted at upper and lower left of center (click to enlarge)

On March 31, 2017 Synagro filed another Site Plan, for a different site several hundred feet away.  A review of this Site Plan was done on this blog, is found here, and identified eleven variances this blogger feels will be needed by Synagro.  On a good day, a Zoning Officer will rule variances are needed, and the Zoning Hearing Board will actually evaluate the criteria needed to be granted said variances.  This Site Plan is also on the agenda to be discussed at the May Planning Commission meeting.  Here is a diagram in which topographic lines from sheet 3 of the Site Plan are superimposed on sheet 2.  It is obvious that the property is almost entirely steep slopes, and that the proposed traffic pattern across what Synagro claims is the rear yard (but is actually the side yard) to a neighboring property is nonsensical and does not comply with the Ordinance:

Synagro's new proposed site is covered with steep slopes... and a 90' deep quarry
Where do the cars and trucks go? (click to enlarge)

A review/response letter was issued by Plainfield Township on Tuesday April 11, 2017.  The letter addresses several points:
  • A Zoning Permit is denied
  • Several potential deficiencies are itemized, which are similar to those noted in the review done on this blog - steep slopes, setbacks, yards, loading/unloading, parking, access drives
  • Synagro is put on notice that proof of compliance with the standards of the Ordinance, including professional testing and results, may be required in order for a permit to be issued
Notable additional variances would be needed
On this blog, it was proposed on April 11 that based on the March 31 Site Plan variances will be needed to Sections 503.J.1.c, 503.J.1.d, 318.I, 201.B, 703.A.7, 703.D, 704.B.2, 704.B.3, 704.B.6, 315.B.35.a, 315.B.35.b of the Zoning Ordinance in addition to a SALDO waiver of 10.7.D.

The review letter identifies an additional issue which may result in a variance - the proposed use modifies the bank of a water body that is identified on Synagro's own site plan as an "existing pond", and creates a parking lot within 10' of the new bank.  Section 505 of the Ordinance states that all areas within 50' of a pond shall be "open space" - which the Ordinance states shall not include parking areas.  Thus a dimensional variance of Sec 505 would be needed, and also trigger a variance to Sec 315.B.35.g which requires that this Use meet all requirements of Article 5 of the Ordinance (which contains Sec 505).  This brings this blog's grand total of variances needed to 9 Use variances and 4 dimensional variances - lucky 13.

The review letter does not specifically state that variances are required, but takes a more laid back approach of "this is not permitted by the Ordinance - show us how you will address it."  The letter is what one might expect in response to a Sketch Plan being submitted for an informal review, which is what the March 31 plan appears to be.  If Synagro continues to press forward with this rubbish as a Site Plan, they will be notified of variances required.

Here is the Zoning Officer's review letter, co-authored by Zoning Officer John Lezoche and Alternate Zoning Officer/Township Manager Tom Petrucci.  It is addressed to Synagro's local legal representative, Matthew Goodrich.  Mr. Goodrich appeared to blow a head gasket following the December 2016 Plainfield BOS meeting in which is was discussed that Synagro's use is not permitted on the original site (despite Mr. Goodrich's representation at the Nov 21, 2016 Planning Commission meeting that Synagro's use satisfies the Ordinance in every way - it does not).  He is unlikely to feel much better after reading the review of the new plan:

Tuesday, April 11, 2017

Synagro's latest proposed biosolids crap bakery in Plainfield Township requires 11 variances - review of March 31, 2017 Site Plan

In yesterday’s post, we reviewed the kinds of uses (Permitted by Right, Special Exception, Conditional) and variances (Use, Dimensional, De Minimus), as well as the standardized criteria to obtain a variance and the difference in how the criteria may be evaluated depending on the type of variance.

Today we will look at the variances that may be required because Synagro’s Site Plan is not in compliance with the Zoning Ordinance.  There are several, and every one is needed because of the postage stamp of land that Synagro is attempting to locate its plant on is comprised of 80% steep slopes and a former quarry.  Everything that could go wrong does. As a preview, employee parking is so close to "unloading" (bwa ha ha) that the employees may get a poop spritz facial whilst going to or coming from their cars as trucks are washed - assuming they are.

Before we get technical on the merits, why on Earth is Synagro still here?
Let’s get two unrelated but significant details out of the way.  First, not one person this blogger has met or heard from, other than someone with a connection to Waste Management, Green Knight or Synagro, is in favor of Synagro’s proposed plant.  The governments of Plainfield Township and Pen Argyl have voted to oppose the project, while Wind Gap’s government has remained silent.  Second, Waste Management’s predecessor Grand Central signed a legally binding agreement with Plainfield Township, on file with Northampton County, in which Grand Central (now Waste Management) is to return land of the township’s that is currently being used by the landfill and energy center (and which Synagro would use) to the township when the landfill closes.  Synagro has announced it plans to remain long after the projected date of the landfill closing,  approximately 2035.   Waste Management apparently has neither alerted Synagro to this agreement, nor alerted Plainfield Township to its plans to possibly violate the agreement.  Yo! Yo!  Mr. Hambrose - WTF, do you have our back or are you looking use it?  OK, now that we see that in a normal situation, the Applicant would have folded his tent and left months ago,  let’s see what a cluster Synagro’s latest application is.

Where to find the Ordinance and SALDO that are used to determine compliance
First, you need to know where to go to find a few things:
  • The Zoning Ordinance is here.  
  • A comprehensive amendment to the Steep Slope section of the Ordinance is here.  
  • The SALDO is here.  
  • The Site Plans are at the bottom of this post - sheets 2 and 3 are the most helpful.
Note. A reference such as "Sec 318.x" refers to an article in the Zoning Ordinance.  All references to Sec 503 require using the Steep Slope amendment linked to above in lieu of the no longer applicable text in Sec 503 at the link to the entire Ordinance.

Warning: The Ordinance (3+ Mb) and SALDO (7+ Mb) are large files.  They are also text only and tedious to search through.  No pain, no gain.

 Synagro’s March 31 Site Plan requires 11 variances and a SALDO waiver
This blogger believes that Synagro’s March 31 Site Plan for the site on which it is a Permitted Use by Right will require nine Use Variances, two Dimensional Variances, and a SALDO waiver (granted by Supervisory body).

Steep Slopes (2 Use Variances)
Sec 503.J.1.c & 503.J.1.d   Pockets/areas of land 1000 sq ft or more with a slope 25% or greater were identified in order to locate Class A slopes.  The following was found:

  • 13180 sq ft of contiguous Class A slope under the proposed  plant, driveway and parking area (5260 + 7920 on diagram)
  • 1040 sq ft of contiguous Class A slope under the WWTP accessory building, as well as an additional 170 sq ft with slope greater than or equal to 25%.
  • 51300 sq ft of Class A slope in the “sediment basin” to have fill added @ plant
  • 4480 sq ft of Class A slope in the “sediment basin” to have fill added @ WWTP
It is proposed to develop driving and parking areas as well as the plant and accessory building on Class A slopes, as well as to grade and add fill to Class A slopes  – these are all prohibited activities.  A total of approximately 70000 sq ft of Class A slopes are proposed to be developed in a manner prohibited by the Ordinance.

Front yard as proposed for Synagro lot (1 Dimensional Variance or SALDO Waiver)
Sec 318.I & SALDO 10.7.D It is proposed to eliminate the existing lot that the Energy Center is on and to re-subdivide.  The proposed yards (front, side, rear) for the 7.01 acre lot are not in accordance with the SALDO – at a random point the front yard inexplicably changes to the side yard.  Laying out a new lot not yet developed would call for starting from scratch, and that the front yard would extend all along the paved road – through the curve.  Side lines would be perpendicular to the road, and in this case meet such that there is no rear yard – as provided for in the SALDO.  A proper layout would result in the proposed plant being in the front yard by over 20’.

Note 1: To understand how yards are defined and determined, you will need to research the definitions of Lot, Lot Line, and Yard in SALDO section 2, as well as SALDO 10.7.D

Note 2: The keen observer will note that the Energy Center has only a 25’ setback from the road.  It is beyond the scope of this review to discuss how or why this happened or who (initials R.C. Jr) was involved in 2000.  It is submitted that during re-subdivision the Energy Center should become a nonconforming use with a 25’ front yard setback.

Accessory Use of GKEC (1 Use Variance)
Sec 201.B An accessory use to the Green Knight Energy Center (Switch gear - interface of GKEC to power grid) is proposed to be located not only not on the proposed GKEC lot, but in another zoning district altogether and with another property owner’s land (Plainfield Township) in between the two.  An accessory use must be on the same lot as the principal use.

Off-Street Parking (2 Use Variances)
Sec 703.D The access drives for Synagro's lot are not at least 10' from the rear lot line, and there is no way to screen the drive since it passes over the lot line
Sec 703.A.7 The GKEDC and Synagro parking areas depicted on Site Plan Sheet C-02 are interfered with by the truck traffic of another use - Synagro's loading/unloading truck traffic.

Off-street Loading (3 Use Variances)
Sec 704.B.2 The parking space maneuvering room is in conflict with off-street loading on both Synagro and GKEDC's lots
Sec 704.B.3 The maneuvering area for unloading is not entirely on the lot being served, so the "yard area" boundaries are exceeded
Sec 704.B.6 The traffic pattern constitutes a hazard to vehicles accessing or departing parking areas, and trucks entering and departing are in conflict with each other.

Additional Standards for a Material Separation Facility (1 Dimensional and 1 Use Variance)
315.B.35.a The proposed 7.01 acre site has only 1.65 acres of usable area, due to a former quarry being located in the center of it.  The proposed area is clearly not in accordance with the intent of the Ordinance to provide an additional 2 acres for each additional 100 tons capacity over 300 tons per day.
315.B.35.b The entrances and exits are not separated as depicted on the site plan. The two proposed accesses are bidirectional – not in accordance with the requirement.  One of the access drives is not located along the road, but rather across the proposed lot adjacent and sharing that lot’s access drive.

edit 4/16 - Plainfield Township's review letter published after this post details an additional apparent deficiency - parking areas, driveways, buildings must be set back at least 50' from a pond.  This would create a need for variances from Sec 505 and Sec 315.B.35.g, bringing the total to thirteen.

Site Plan Sheet 2
Setback, traffic patterns and parking shown on this diagram
Site Plan Sheet 3
Lime green outline and emphasized elevation lines indicate proposed 7.01 acre lot boundary
Site Plan Sheet 1
This sheet depicts wetlands - the only level area left in Solid Waste is wetlands - at lower left

What are the chances Synagro can prove it has a hardship?
Let’s cut to the chase and look at one criteria to grant a variance.  Waste Management’s property on which the landfill is situated generates untold millions in profits a year.  The land on which the Energy Center is located generates a net of over a million dollars each year, and the Energy Center is a non-profit.  It simply is disingenuous to argue that the land owner (WM) or equitable owner (GKEC) as the case may be is not making productive use of his property – one of the hardships that must be proven.  There is no justification to grant this colossally ill-conceived project zoning relief.  This applies also to Synagro's first site plan, for a site where its use is not permitted.  That lot is also owned by WM and has operations on it that are generating phenomenal income.  You don't deserve no relief, you big dummy!

What if Syangro argues that all the land in the Solid Waste district is used?
Tough poop.  The zoning has not changed since 1989 for this use - it was permitted then.  So Grand Central planned poorly when they used every last square foot of space, and WM bought that and did its own expansion.  Greed is a horrible thing.  If a measly 5 acres had been set aside for this use, Synagro would be all set to fling the poop at the fan.  Pardon me whilst I locate a Kleenex - I'm all choked up.  That's called a self-created need for a variance.

What is next?
The township Zoning Officer will issue a response to Synagro by the end of this week, and the township engineer will weigh in with a review prior to the review in May.  In the case of Steep Slopes, it is likely Synagro will be asked to denote on the Site Plan where they are, as provided for in the ordinance.   They may be asked for other additional details of as well.

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)