Posted by: Patricia Salkin | July 27, 2019

PA Appeals Court Finds Condition Limiting Hours of Operation for Trucking and Hauling Use was Authorized and Reasonable

This post was authored by Matthew Loeser, Esq.

W.J. Menkins Holdings, LLC owned property located in the Township’s Village Commercial (“VC”) Zoning District, which consisted of approximately one and one-half acres with a single-family residence and a five-bay garage/office. Applicant purchased the property from Randy L. and Debra Keen, who lived in the residence and operated a family-owned commercial electrical contracting business from it in accordance with variances the Township had granted. Applicant leased the property to the W.J. Menkins Hauling company to operate a quarry trucking business. After the Township contacted Applicant about zoning violations, Menkins applied for a zoning permit to change the property’s use from Keen Electric to a “hauling business.” The Township’s Code Enforcement Officer, John Wascavage, denied the zoning permit application. The Zoning Board then granted Applicant’s variance, subject to several conditions, which W.J. Menkins challenged in this case.

The first condition imposed by the Board was that the hours of operation of the trucking/hauling use would be limited to between 6AM to 6PM, Monday through Friday. Applicant’s noise study/abatement expert Robert G. Richardson testified that he performed a study of the heavy vehicle noise from the Property on October 26, 2016 between 4:48 a.m. and 5:44 a.m., and concluded that the noise levels produced in that process were below 60 decibels at four locations, which complied with Section 27-708.B of the Zoning Ordinance  However, Richardson also acknowledged that his study did not measure for air brakes, back-up beepers, trucks moving on gravel, or driver gear-shifting techniques/ revolutions per minute (“RPMs”), and admitted that the decibel levels would increase as the number of simultaneously operated trucks increased. Conversely, the court found that substantial record evidence supported the Board’s determination that noise from the Company’s operation of its dump trucks on the property negatively impacted the surrounding property owners. As such, the Board was authorized to impose reasonable conditions necessary to minimize or neutralize the intrusion on the neighborhood.

As to the condition that required Applicant obtain land development approval, the Board found credible an adjoining property owner’s concern that Applicant’s truck washing would take place wherever the dump trucks were parked, and the water run-off would contaminate his property. The court noted that this speculation did not amount to substantial evidence. Furthermore, the Board acknowledged that it did not have the authority to require Applicant’s compliance with land use development regulations as a variance approval condition. Because this condition was not supported by the Zoning Ordinance/MPC or the record, it was found unreasonable, and the Board therefore abused its discretion by imposing it.

W.J. Menkins Holdings, LLC v. Douglass Township, 208 A.3d 190 (PA Commwlth 5/2/2019)

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