Jojo Oil Co. v. Dingman Township Zoning Hearing Board

DISSENTING OPINION BY

Judge McCullough.

I respectfully dissent because I believe that the Court of Common Pleas of Pike County (trial court) erred in concluding that JoJo Oil Company, Inc., d/b/a Airline Petroleum (Applicant) met the requirements of sections 105 and 404.2 of the Dingman Township (Township) Zoning Ordinance (Ordinance) for a special exception permit for a bulk fuel transfer station.

The facts are aptly set forth by the Majority. Applicant was in the business of selling and delivering propane and home heating oil. Applicant submitted a zoning application to the Township’s zoning officer for a bulk fuel transfer station consisting of two underground 20,000-gal-lon heating oil tanks, one above-ground 30,000-gallon propane tank, a truck-loading area, and a turn-around. The site would be unmanned and enclosed by an eight-foot high chain link fence topped with barbed wire. Applicant sought to construct this facility in a RC-Resort/Commercial zoning district and only approximately 185 feet from the nearest residence. The zoning officer determined that a bulk fuel transfer station was not a permitted, conditional, or special exception use in any zoning district in the Township.

In accordance with section 105 of the Ordinance, the zoning officer referred the application to the Township’s Zoning Hearing Board (ZHB). Section 105 addresses the situation where a use is not provided for in the Ordinance. Specifically, section 105 states that:

Whenever, in any District established under this Ordinance, a use is neither specifically permitted nor denied and an application is made by the property owner to the Zoning Officer for such use, the application shall be referred to the Zoning Hearing Board which shall *692have the authority to permit the use; or deny the use, as a Special Exception. The use may he permitted if it is similar to and compatible with permitted uses (uses listed as permitted, conditional uses, and special exceptions) in the district, and in no way conflicts with the general purpose and intent of this Ordinance and the use is not permitted in any other district. The Zoning Hearing Board may attach reasonable conditions to the issuance of a permit incorporating existing standards from similar uses in the district and such other restrictions as the Board may deem appropriate.

(Emphasis added).

Section 404.2 of the Ordinance provides that:

Uses specified as special exceptions under this Ordinance shall be permitted only after review by the Planning Commission and review and approval by the Zoning Hearing Board. Such approval shall be based on the determination that the use is appropriate to the specific location for which it is proposed, consistent with the Comprehensive Plan, in keeping with the purpose and intent of the Ordinance. The following criteria shall be used as a guide in evaluating a proposed use:
a. The presence of adjoining similar uses.
b. The presence of an adjoining district in which the use is permitted.
c. The need for the use in the area proposed, as established by the Comprehensive Plan.
d. Sufficient area to effectively screen the use from nearby different uses.
e. Conditions such that there were several potential sites for the use but not a sufficient need to establish a permitting zone district or to leave the District open to indiscriminate placement of such use.
f. Sufficient safeguards such as parking, traffic control, screening and setbacks can be effectuated to remove any potential adverse influence the use may have on adjoining uses.
g. The burden of proof shall remain with the applicant to show compliance with all standards and the burden shall never shift to the Township.
h. Applicants shall submit plot plans in sufficient detail to provide the Board and the Planning Commission with enough information to properly evaluate the proposed planned use.

(Emphasis added).

Before the ZHB, Applicant presented the testimony of Joseph Hudak (Hudak), a licensed professional engineer. Hudak testified that the site of the proposed use consisted of slightly more than three acres, with setbacks of 100 feet, double the fifty-foot requirement of the Ordinance. (R.R. at 19a, 22a.) Hudak stated that the tanks would be double-walled and monitored to protect against leaks, and will comply with all state and federal requirements for fire protection. (R.R. at 17a, 24a.) When asked what use the bulk fuel transfer station was “most like,” Hudak responded, “the gasoline station,” which is a conditional use in a RC zoning district. (R.R. at 31a.) Hudak explained that both uses require storage of fuel in underground tanks. (R.R. at 20a.)

On cross-examination, Hudak conceded that there are other larger, unoccupied areas within the Township’s RC zoning district. (R.R. at 36a.) Hudak stated that the nearest residential property was approximately 185 feet away from the above-ground propane storage tank and that he was unaware of the extent of the blast zone resulting from a boiling liquid expanding vapor explosion. (R.R. at 40a-*69341a.) Hudak acknowledged that he was unaware of any current plans for an automatic water deluge system to prevent this type of overheating and explosion. (R.R. at 41a.) With respect to the comparison between the bulk fuel transfer station and gasoline station uses, Hudak acknowledged that gasoline is not stored under pressure, but that propane is, and that the proposed site would not be manned. (R.R. at 42a-43a, 47a.)

Applicant also presented the testimony of John Occhipinti (Occhipinti), its director of operations. Occhipinti testified that the gasoline station use is very similar to the proposed bulk fuel transfer station use, but with less traffic. (R.R. at 57a.) Occhi-pinti noted that many gasoline stations utilize propane heat or have a propane filling station and maintain 1,000 to 2,000 gallon propane storage tanks. Id. Occhi-pinti indicated that Applicant serves about 400 customers in the area and the proposed site would allow for increased storage and lower delivery costs. (R.R. at 57a, 60a.) Regarding safety precautions, Oc-ehipinti stated that each tank would be equipped with monitors and an emergency shutoff. (R.R. at 69a-70a.)

On cross-examination, Occhipinti opined that gasoline was as volatile and explosive as pressurized propane. (R.R. at 82a.) Comparing the uses, Occhipinti acknowledged that gasoline tanks are underground. (R.R. at 83a.) Similar to Hudak, Occhipinti indicated that there were no plans for an automatic water deluge system for the above-ground propane tank and that the nearest home is only a few hundred feet away. (R.R. at 85a-86a.) Occhipinti also acknowledged the presence of fifteen to sixteen fuel oil/propane suppliers in the area and that a propane tank explosion would certainly affect nearby homes. (R.R. at 89a, 92a.) Upon questioning by the members of the ZHB, Oc-chipinti explained that the tanks will be monitored remotely and emergency services would be notified if there was a problem. (R.R. at 100a.)

Sunrise Lake Association and Conas-haugh Lake Community Association (Objectors), neighboring residential subdivisions, presented their own professional engineer, Richard Stryker (Stryker).1 Stryker described the residential developments that border the proposed site on two sides, including 105 residential lots within 1,000 feet of the center of the site, with the nearest less than 200 feet away. (R.R. at 113a-14a, 117a, 119a.) Stryker noted that there are larger, similarly-zoned parcels in the Township that would be better suited for this type of project. (R.R. at 122a-23a.) On cross-examination, Stryker conceded that the Township engineer and the Township’s planning commission both recommended approval of Applicant’s application and that the RC zoning district would be appropriate for this type of proposed use.2 (R.R. at 130a, 132a, 135a.)

*694Based upon this testimony, the ZHB found that Applicant failed to meet its initial burden of proving that the proposed use of a bulk fuel transfer station was appropriate in the specific location for which it was proposed. Further, the ZHB found that Applicant failed to meet many of the criteria set forth in section 404.2 of the Ordinance. More specifically, the ZHB found, inter alia, that: Applicant failed to show the presence of adjoining similar uses, noting that the property was bounded on one side by state game lands and by residential subdivisions in the front and back; a review of the Ordinance reveals no adjoining zoning districts where the proposed use is permitted; the presence of sixteen home heating fuel delivery services operating in the area demonstrates that there is no unmet need for the proposed use in the specific location requested; there is insufficient area to effectively screen the use to reduce its adverse impact on existing adjacent residential uses; and it is not possible to impose sufficient safeguards to remove any potential adverse influence the proposed use would have on existing adjoining uses.

Because the testimony cited above supports the ZHB’s findings, I believe that the trial court erred in concluding that Applicant met the requirements of sections 105 and 404.2 of the Ordinance for a special exception permit and, accordingly, would reverse the trial court’s order.

. Approximately 80 to 100 persons attended the ZHB hearing, many of whom lived in close proximity to the proposed site. The ZHB heard testimony from seven of these neighboring landowners, each of whom opposed the grant of Applicant's application. Their testimony expressed similar concerns regarding safety, especially with respect to an explosion, property values, traffic, vandalism, and environmental issues, including proximity to a water reservoir. (R.R. at 141a-87a). Several other neighbors also commented during the public-comment portion of the ZHB hearing. (R.R. at 189a-200a.)

. Although the Township's engineer opined that the RC zoning district was appropriate for the proposed use, he did have concerns regarding the particular site chosen by Applicant. In a letter dated May 24, 2011, the Township’s engineer stated as follows:

The parcel is located immediately adjacent to a residential subdivision, adequate provi*694sions must be made to ensure that no adverse impact will be realized by the residential use. Considerations should be given to increased setbacks, sufficient buffer and screening areas.

(R.R. at 205a.)