Note: The following is not a verbatim transcript of the Zoning Hearing Board meeting; it is simply one person’s summary of the major points made by those involved in the hearing process.  For that reason, quotation marks are not used unless a direct quote was recorded.  For information about obtaining an official ZHB transcript, contact the New Hanover Township office.

Bob Brant, New Hanover Township solicitor began his case by asking Gibraltar Rock, Inc. (GRI) to withdrawing the application for Gibraltar 1 because Gibraltar 2 includes all of Gibraltar 1. He also suggested that the zoning hearing board dismiss Gibraltar 1 because it is the same permit as Gibraltar 2 and that the property included in the application went from 163 acres to 241.  He also said that there is no way, in Gibraltar 1, that the zoning hearing board is seeing the same materials that GRI sent to DEP.

Stephen Harris, attorney for GRI said he has no intention of dropping Gibraltar 1.  His bottom line is that GRI will only mine what DEP approves and the township approves. He also said Brant has no governing law on which to request this.

Brant asked Rebecca Bell, solicitor for the zoning board, to allow him time to find such laws. Ms. Bell gave Brant 30 days to put together a memorandum listing governing law.

Brant started his case by bringing Hank Clemmer, former New Hanover Township Code Enforcement officer to the stand as a fact witness (not an expert witness). Brant said that he intended to prove that there was no intentional omission of quarries in the township ordinances during the codification.  Note: “codification” in this context means any time multiple ordinances are revised and put into a single document.

Brant reviewed the duties of a code enforcement officer, listing that he did home, building, and industrial inspections, reviewed applications to see if they complied to existing zoning ordinances, and issued enforcement notices, among other duties.

Brant walked him through the application process as it applied to GRI. As stated by Clemmer, Harris brought the application into the office and gave it to the township office manager. Harris submitted a special exception without having presented a zoning application.  After review, Clemmer submitted a decision form (Exhibit B1) that listed the differences between the application and the ordinances. The crux of the issue was that the application was submitted for a quarry as the principal use of the property, but that Clemmer believed that the Asphalt and ready-mix plants constituted three principal uses, that they were not secondary to the quarry, but equal.  And as such, these should have addressed in their own applications. The ordinance says that there only one principal use shall be permitted. Clemmer said he believed these other two plants were separate uses and said he communicated that to GRI.

Clemmer also said that Harris did not change the application, just requested a special exception.

Next Brant walked Clemmer through the history of the zoning ordinance changes from 1983 to 2001.  This was in response to Harris’ charge that someone purposely changed the ordinances to keep quarries out.

Brant began with the ordinance adopted in 1990 (Exhibit T6). This was a re-write of the 1983 ordinance and it was re-written to include performance standards into the regulations.

The next ordinance was the codification of the ordinances in 1997.  Clemmer explained that during this all of the ordinances and changes were put together in one document.

There were also amendments in 1998 and 2001.

Brant next traced the history of “extractive uses” (i.e. mining, quarrying) through the ordinances from 1983-2001. Clemmer testified that in the 1990 ordinance extractive uses are permitted in HI (heavy industrial). It is mentioned in text and in a chart.  In the 1997 codification it is listed in the text and in a chart under “uses permitted in HI with Special Exception” and on the associated chart.  Clemmer said that this is what he used when reviewing the GRI application.

The codification was conducted by an outside firm in 1997. Clemmer said he used it after 1997, but he did not review it after the codification; he said he reviewed it as needed.  He admitted that he found errors in the codification, some in definitions and he also found that some uses had been omitted. When Brant asked if the term “extractive uses: was omitted, he said it was not listed in the text portion but it was in the chart.

Under oath, Brant asked Clemmer if anyone ever asked him to omit “extractive uses” from the ordinances, and he said “no.” Brant asked him if he had reviewed supervisor and zoning board minutes to see if there was any mention of omitting the terms, and he said he had and there was no mention of the term “extractive uses.”  Under oath, Brant asked Clemmer if any supervisor ever asked him to omit “extractive uses” from the ordinances, and he said “no.”  Brant followed up by asking him if he disagrees with Mr. Ken Amey’s (paid GRI land use planner) comment that there was a “clear intent to omit extractive uses.” He said he does disagree with that statement. 

Brant finished by asking him if he treated GRI’s application as though it were a use of HI, and he said he did.

Mr. Harris began cross-examination.

Harris spent his time minimizing the size of the asphalt and ready-mix plants in an attempt to discredit Clemmer’s comment that these were principal uses, not secondary uses.

On redirect Brant made sure to have Clemmer explain that asphalt and ready-mix plants would require additional applications and approvals. On re-re-direct Harris made Clemmer say that it was possible that an asphalt and ready-mix plant could be put on two acres of LI (light industrial).

Brant did not re-re-re-direct. Luckily we took a break.

Brant introduced his next witness, Mark A. Roth of McMahon Associates. Mr. Roth is a transportation planning specialist and represents the township as traffic engineer.  Roth appeared before the township in the Heritage Retirement Community applications.  Roth said he conducts traffic studies and reviews traffic data.

For this case he reviewed GRI’s traffic assessment study including information on the intersections. He concluded that the traffic study, performed by GRI, was not done according to township standards.  He said that he raised the concern to the township in the areas of 

• Trip generation

• Study area

• Peak hours

• Background growth rate

• Distribution percentage

• Direction of approach

According to Roth, GRI said the peak hours were 5-6 AM, 10-11 AM, and 2-3 PM.  He said that typically peak hours investigated surrounding quarries, asphalt plants and ready-mix plants are 7-9 AM and 4-6 PM.  He said that he recommended that the township conduct its own study.

He also mentioned the intersection study done by GRI. He said the study did not conform to ordinances, because their study did not include the effects of other upcoming development in this area.  Specially, the Heritage Retirement Community with 719 units and a 338 bed facility directly across the street from the proposed quarry.  Also missing is the Gogler Commercial center with 2700 sq ft. of retail space and 92 townhouse units.  As well, the study did not include 526 units in another proposed development.

Brant asked that based on this increase and his review of all other planned development, if there was an increase over what GRI’s traffic study reported. He said there is a 40 to 50% increase of traffic on Rt. 73.

Roth said that this increase would further degrade the problems at the intersections. He also said it has an effect on the number of anticipated trips into and out of the proposed site.  He mentioned that the proximity to three schools was not mentioned in the GRI study.

Roth next talked about his trip generation counts. He did a comparison summarizing the data on the GRI study, which was based on data supplied by John Silvi to his traffic study coordinator---in effect he was saying that GRI did not trip generation study, Silvi merely told the traffic person what he estimated they would be.  McMahon and Associates, Roth’s employer, chose to do an actual study using an existing quarry---Corson Quarry in Whitemarsh Township, Montgomery County.  He mentioned that this 320-acre quarry also has an asphalt plant, so it was similar enough to compare. Harris disagreed and was overruled, which always gives the crowd a good feeling.  Roth said his firm looked at the layout and access points and positioned data collectors to collect visual data of traffic into and out of the quarry/asphalt plant.  They differentiated between cars and trucks. Roth said that there is a 45% differences on the data supplied by Silvi, and what his study indicated.  So, when GRI says that there will be 60 trucks entering and leaving the quarry during the afternoon peak (2-3 PM), according to Roth’s study, there will actually be 100 trucks during that time---an increase of 40 trucks.

Roth ended by saying that additional traffic studies should be performed.

See Also:
Summary of the previous meeting (May 15, 2003)