Court finds solid waste recycling facility violated South Whitehall ordinance

By Nicholas Malfitano | Aug 25, 2015

Commonwealth Court Judge Rochelle S. Friedman  

HARRISBURG – On July 15, the Commonwealth Court of Pennsylvania affirmed a 2014 decision from Lehigh County in a zoning dispute in South Whitehall Township.

The Commonwealth Court, much as the Lehigh County Court of Common Pleas did, found appellant Huckleberry Associates’ operation of a solid waste recycling facility in South Whitehall Township to be in violation of the local zoning ordinance.

The matter came before judges Dan Pellegrini, Bonnie Brigance Leadbetter and Rochelle S. Friedman, with Friedman representing the Court by authoring the opinion.

Huckleberry owns six contiguous parcels of land totaling 63.7 acres, located at 4359 Huckleberry Road in South Whitehall Township, in the rural holding zoning district.

In November 2012 and March 2013, the Pennsylvania Department of Environmental Protection (DEP) issued two Biosoil Permits to Huckleberry that allowed it to build and operate a composting and biosoil-production facility on the property. 

The Biosoil Permits limited the materials that could be used in the production process to “food-processing waste; pre- and post-consumer food waste; yard waste; source-separated newspaper, standard and laminated paper, and wax-coated cardboard; unpainted and untreated pallets; land-clearing and grubbing waste; and agricultural waste.”

The Biosoil Permits also stated that the resulting post-production materials could be used only for or as “soil additive; mulch; filter-stock media for soil erosion control; fertilizer for farming operations; and topsoil.”

In March 2013, Mark Granahan, a neighboring property owner, complained to the township that his residence had been damaged from stormwater runoff, resulting from excavation and paving activities at the biosoil facility.

The Township inspected the property in April 2013 and found that Huckleberry had paved over previously undisturbed meadow in order to build the facility. As of April 2013, Huckleberry had paved 11,250 square feet. 

On April 23, 2013, the Township cited Huckleberry for the following violations of the zoning ordinance:

-Huckleberry did not apply for a special exception before creating an impervious surface exceeding 10,000 square feet;

-Huckleberry did not obtain a zoning permit to change the use of the property from a surface mine and quarry to a solid waste recycling facility; and 

-Huckleberry operated a solid waste recycling facility, which is a non-permitted use in the RH District.

Through a series of three public hearings, Huckleberry appealed to the Zoning Hearing Board (ZHB).

Before the ZHB, Huckleberry argued that the ordinance was pre-empted by prior legislation permitting the facility, that the biosoil facility was “a natural expansion” of the prior, non-conforming use of the property, and that the township itself used the property for leaf storage for 13 years, so it was prohibited from asserting zoning violations.

On Nov. 8, 2013, the ZHB denied Huckleberry’s appeal, finding that Huckleberry violated three different sections of the zoning ordinance. Huckleberry first appealed to the trial court, which affirmed the ZHB’s decision, and then appealed to the Commonwealth Court.

Huckleberry argued the trial court erred in finding it violated the zoning ordinance without obtaining a permit, feeling such activity was covered by the Noncoal Act – an argument disfavored by the Court.

“The ordinance at issue here regulates where a noncoal surface mine can be located within the township; the ordinance does not regulate the manner in which such a facility is operated. Furthermore, the Biosoil Permits expressly conditioned DEP’s approval of the solid waste recycling facility on Huckleberry’s compliance with applicable zoning regulations,” Friedman said.

Huckleberry also argued its production of biosoils at the property is permitted by a prior agreement from 2000, because the solid waste recycling operation constitutes the stockpiling and storage of “mulch, topsoil… and related products.” However, the Commonwealth Court’s view on this issue aligned with prior groups hearing the case.

“The ZHB properly concluded that it could not consider this issue because the 2000 Agreement states that jurisdiction for any claim arising thereunder lies exclusively with the Court of Common Pleas of Berks County. Therefore, the ZHB lacked jurisdiction to adjudicate any dispute arising under the terms of the 2000 Agreement,” Friedman said.

“We also reject Huckleberry’s claim that the solid waste recycling facility is a natural expansion of the Property’s prior, nonconforming use as a surface mine and quarry. Under any reasonable interpretation, the collection of third-party, consumer food waste is neither a mining activity nor a quarry activity, nor is it a natural expansion of such activities,” Friedman added.

The Court also found Huckleberry did not obtain a special exception to create a new impervious surface on the property, nor was it protected from zoning violations for engaging in a prior agreement with the township for municipal leaf storage at the property.

“The ordinance is not preempted by the Noncoal Act, and the Biosoil Permits expressly conditioned DEP’s approval of the solid waste recycling facility on Huckleberry’s compliance with all applicable zoning regulations,” Friedman said.

“Under the 2000 Agreement, Huckleberry expressly granted the township the right to store leaves on the property in exchange for Huckleberry’s exemption from paying business privilege taxes. The township’s limited, contractually-granted right to store leaves on the property does not confer on Huckleberry the right to store and recycle third-party food waste at the property.”

The appellant is represented by Timothy J. Siegfried of Norris, McLaughlin & Marcus, in Allentown.

The appellee is represented by Maria C. Mullane, plus Jennifer R. Alderfer of Zator Law, both in Allentown.

The Commonwealth Court of Pennsylvania case 1748 C.D. 2014

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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