Tuesday, November 28, 2017

Synagro Sketch Plan for crap bakery in Plainfield Township requires multiple use variances and one dimensional variance

On Wednesday November 29, the Plainfield Township Planning Commission will meet to review Synagro's latest application to locate a biosolids (crap) bakery in the township.  It is a permitted use, but Waste Management, Synagro, and Green Knights are attempting to wedge this pig into a postage stamp-sized area, and as a result multiple variances are needed.  If they can not demonstrate hardship (which they can't), they can't obtain a permit.  The current application is only a sketch plan - it can neither be approved or disapproved - it's intent is to present a proposed concept and get feedback, ideally.  Synagro already has the feedback it needs from Plainfield Township and the neighboring municipalities - take this shit elsewhere.

Let's review the kinds of variances, and which are easier to be granted under the PA Municipalities Planning Code (MPC), if relief is justified.  There are dimensional variances, in which a dimension such as height, building setback, etc can not be met, and use variances, such as locating a crap bakery in a zoning district it is not permitted, in which a non-dimensional requirement can not be met.  This is what Synagro first tried to do, even though (former) Planning Commission and Green Knight member Robert Cornman Jr. was involved in a similar attempt to locate a business permitted only in the Solid Waste District in another zoning district in 1999.  Click here to see the Zoning Hearing Board opinion rejecting that variance request.  As long time Planning Commission Chairman, responsible for knowing and updating zoning, did he really not know where Synagro's use is permitted?   Did he care?  While the same uniform criteria were intended to be applied to each kind of variance, the PA courts have ruled/interpreted that the most stringent tests for hardship apply to only use variances.  This is ok - Synagro needs multiple use variances.

The following criteria are specified in the MPC, and all must be satisfied to grant a variance:
  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 the 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.
You may have attended a Zoning Hearing Board (ZHB) hearing, and walked out saying "that sucked - they knew how they wanted to vote before they walked in.  That was a kangaroo court.  What a joke."  This can and does happen, and many times it goes without challenge due to cost (assuming a record was made to justify appeal by an aggrieved party) or an insufficient record to overturn the decision.  A Zoning Hearing Board is a quasi-judicial body, with a stenographer and testimony under oath.  The Board has the latitude to hear testimony and evidence, and decide which it finds credible and which it does not.  Having good standing as a nearby or adjoining property owner increases the pressure on the Board to act as it always should - ethically, and impartially.  On the other hand, unless an objector with good standing (aggrieved party) appears in opposition, the ZHB can pretty much do as it pleases, but the municipality always has the right to intervene and appeal a decision - even if it did not appear and object.  In the case of Synagro, Plainfield Township obviously objects to their plans, and will appear with counsel at the ZHB to cross examine witnesses and present testimony during a variance hearing. When lawyers show at a Zoning Hearing Board Hearing, it increases the pressure even more to follow procedures carefully.  The ZHB's decisions may be appealed to the county court, the Commonwealth Court, and in some cases the State Supreme Court (the Supreme Court agrees to hear a tiny fraction of civil cases on appeal), by either side.  It is vital to get everything substantive on record at the ZHB, since on appeal usually cases are decided solely on the record made at the ZHB.  The issue on appeal is usually did the ZHB make an error of law or abuse its discretion when it ruled based on the evidence and testimony.

Looking at the Synagro Sketch Plan and the Township Zoning Office's review letter, we can see that several variances are needed (letter is at bottom of this post):
  1. 318(I) x 2 Front lot line is not separating the Green Knight (p 22) or Synagro lot (p 6) from a street right of way, so the front yard setback is not being met. (U)
  2. 402(A) x 2 Neither the proposed Green Knight (p 7) or Synagro lot (p 7) fronts on a street. (U)
  3. 505 Areas within 50' of the banks of any streams, lake or pond shall be in open space. (p 10) (D)
  4. 315.B.35.a Entrances and exits are not separated as required, and are not located along an arterial or collector road. (p 12) (U)
Basically, the Township is arguing that its recreational trail property (in red) was not intended to be considered a "street" when the agreement to allow temporary use of its property was made, that the access drive constructed on it by Grand Central is not a "street", and therefore the proposed lots can not front on it.  Furthermore, the proposed Synagro use is required to be accessed using separate entrances and exits to either an arterial or collector road, and Grand Central's haul road is neither.  Despite Synagro in its sketch plan narrative stating the the entrances and exits are separated, the truck traffic flow diagrams depict both access drives as used in a bidirectional manner - in conflict with the Ordinance.  These are all serious deficiencies.

Another matter that is highlighted in the Township review is that alternate storm water basins/discharge areas must be identified for each proposed lot prior to subdivision or land development approval.  Also that an amended development plan of Green Knight's from 2001 that Synagro relies on in its narrative never met the conditions for final approval, was not recorded, and is thus null and void. This is kind of important - currently Green Knight is operating in violation of its approved and recorded Development Plan, because it depicts the driveway to Green Knight as going through the proposed Synagro plant and connecting to the road through the front yard.  But that was never built, and the Green Knight driveway goes through its side yard (should be the front yard) on the northwest corner of the building.  Uh oh - Lucy got splain'n to do Lucy.  See a portion of the recorded Green Knight plan, below, depicting the driveway location that was approved but not used.

Portion of Synagro Sketch Plan, Plainfield Twp property shown in red

Traffic pattern of necessity.  Bottom diagram is counter clockwise.  Each access is used as both an exit and entrance in violation of the ordinance.

Recorded Green Knight plan, depicting proper driveway through front yard 50' setback
But it was constructed through the side yard 25' setback - bait and switch

The Zoning Office's review letter is shown below for reference.  Note that five use variances and one dimensional are needed thus far.  One of the hardships to obtain a use variance is demonstrating that the property can not otherwise be used profitably.  In this case, the landfill owns the property, and it is extremely profitable.  All the criteria must be met, so failing to meet just one causes the variance to be denied.

Synagro will obtain approval or be denied, in this observer's opinion, based on legal issues involving use of the Plainfield Township Recreational Trail property, and the variances it will need to comply with zoning.  Look at another criterion above (#4) - "will not impair use of adjacent property" presents a problem in light of loss of use of the Township Trail for decades.  "Public welfare" includes health, safety and welfare items such as odors, air pollution, truck traffic etc.  Recently the township solicitor remarked he may be in court with this for 1 to 3 years.  Perhaps Synagro will just leave....