PA Appeals Court Finds Proposed Landfill Unambiguously Constituted “Structure” Under Zoning Law

Tri-County Landfill (“Tri-County”) filed an application with the zoning board for approval of a proposed landfill. With regard to the subject property, Tri-County sought an appeal from the denial of the certificate of use and occupancy, for its alleged nonconforming transfer station use. It also sought a use variance and dimensional variance, and challenged the ordinance for an alleged de facto exclusion of landfills. The subject property was in an area zoned for residential use, which does not allow for landfill, but the industrial zoning did allow for landfills. The zoning ordinance also stated that certain structures were subject to a 40-foot maximum height requirement for residential districts, and sanitary landfills were not listed as one of the exceptions. Tri-County expanded the landfills without proper approval over several years, but then sought approval from the board to use the subject property as a landfill instead of a transfer station. On appeal, Tri-County essentially argued that the ordinance’s definition of “structure” should not be read to encompass landfills, and that the 40-foot height limitation on those structures created an unconstitutional and exclusionary effect on the use of landfills.

The ordinance defines structure as: “A combination of materials forming a construction for occupancy and/or use including among other[s], a building, stadium, gospel tent, circus tent, review stand, platform, staging, observation tower, radio tower, water tank, trestle, wharf, open shed, coal bin, shelter, fence, wall and a sign.” Thus, in order to determine if a landfill qualified as one of the permitted structures, the board needed to determine what constituted a modern landfill. Referring to the determination of the board, the court stated that a modern landfill was not only highly sophisticated and highly engineered, but contained a list of specific features, which essentially consists of several types of liners, drainage systems, collection systems, and pumps. The trial court determined that the landfill was in fact a structure because the statute merely required “that the object be a construction for some type of use.” The Commonwealth Court agreed with the trial court.

Next, the court addressed whether the statute created a de facto exclusion of landfills. “A de facto exclusion exists where an ordinance permits a use on its face, but when applied acts to prohibit the use throughout a municipality.” The challenger has the burden of proving that the ordinance excludes landfills. However, the board determined that because there was extreme conflict in the testimony regarding whether the landfill would be economically feasible with a 40-foot height restriction, that it “did not meet its burden of showing the zoning ordinance’s 40-foot height limitation effectively excludes landfill use.”

With regard to Tri-County’s application for a dimensional variance, the court considered analyzed the application according to the unnecessary hardship standard. The court stated that “a landowner’s desire to increase profitably or maximize development potential” does not constitute a hardship. Thus, because Tri-County “has been operating a transfer station for over 20 years” it was clearly already operating a profitable business on the property, and as such could not demonstrate a hardship because that was its main argument for seeking the dimensional variance. The court affirmed the decision of the trial court, holding that the landfill constituted a structure under the zoning ordinance subject to the 40-foot height limitation, and that Tri-County failed to establish hardship warranting dimensional variance.

Tri-County Landfill, Inc., v. Pine Township Zoning, 83. A.3d 488 (Pa. Cmmw. Ct. 2014)

The opinion can be accessed at: http://www.pacourts.us/assets/opinions/Commonwealth/out/176CD13_1-9-14.pdf