[Zoning Case update] The Commonwealth Court didn't rule on the merits of our zoning case. Instead, it issued a ruling on the procedural appeal process of a zoning matter like ours and did not rule on the primary issue at hand of whether a landfill is a structure (and is therefore subject to height restrictions).
Full details below and a few additional points:
1) Our team is working to digest all of this and will figure out what our available, and best, next steps are for the zoning matter.
2) As the article states, "In no way, shape or form do we view this as a done deal."
3) This is a frustrating ruling as it doesn't resolve the main issue at hand and opens the door for even more possible legal uncertainty.
4) Confusing? Yep. We are reading and reviewing it all now and will, as always, keep everyone updated.
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BY TERRIE MORGAN-BESECKER, STAFF WRITER / PUBLISHED: FEBRUARY 19, 2020
A group opposed to Keystone Sanitary Landfill’s proposed expansion suffered another defeat Tuesday when an appellate court tossed its appeal of a ruling that declared landfills are not structures subject to a height restriction.
Friends of Lackawanna has been battling Keystone for years over whether Dunmore’s zoning ordinance, which limits the height of structures to 50 feet, applies to landfills. The group contends the landfill’s trash pile constitutes a structure and it therefore must comply. Keystone maintains the ordinance applies only to buildings.
In 2014, the borough’s zoning officer issued an opinion in favor of Keystone. The zoning board and a senior Northampton County judge specially appointed to hear the case affirmed that decision, which led Friends of Lackawanna to appeal to the state Commonwealth Court.
In a 15-page opinion filed Tuesday, the court did not rule on the merits of the case. Rather it agreed with Keystone that the issue should never have been before the court system because the zoning hearing board did not have jurisdiction to hear the matter.
Keystone’s attorney, Jeff Belardi, said the ruling is a victory for the landfill because it lets stand the zoning officer’s opinion that the expansion does not violate the zoning ordinance.
Pat Clark, one of the leaders of Friends of Lackawanna, said that does not mean the fight is over, because the court’s ruling leaves the door open to possible other challenges.
“In no way, shape or form do we view this as a done deal,” he said.
In its ruling, the Commonwealth Court said the zoning hearing board had no authority decide whether the landfill was subject to the height restriction. That’s because, by law, Friends of Lackawanna’s only recourse was to challenge the validity of the entire zoning ordinance.
The group initially did that, but later abandoned that argument and focused on the height restriction issue. Once it withdrew the validity challenge, the zoning board no longer had authority to rule on the matter, the court said.
“It said the argument that’s been going on in the court system over the zoning ordinance and the height restriction should have never been played out,” Belardi said. “The only thing that could have been in front of the zoning board is a challenge to the whole ordinance. Friends of Lackawanna did not do that.”
Belardi said the group cannot now raise that challenge because the time frame to do so passed.
Clark said it’s not clear yet whether Keystone must file for any other zoning permits. If it’s required to do so, the Commonwealth Court opinion leaves open the possibility Friends of Lackawanna can challenge them.
“I can see the whole process starting over again if a permit application is needed. We don’t know the answer to that yet,” Clark said.
Clark said the ruling is frustrating. He had hoped to get a ruling on the merits of the dispute, only to be told the issue should have never gone to court.
Belardi also expressed frustration. He said the height restriction fight was unnecessary because Keystone agreed two years ago that it would not seek to pile trash higher than it currently does. He said Friends of Lackawanna continued to challenge the issue, however, because it was concerned Keystone would later alter that plan.
Clark said the group is considering its options, which include asking the Commonwealth Court to reconsider its ruling or to ask the state Supreme Court to hear an appeal.
“We need to figure out what our next steps are legally and procedurally,” he said.