The Quarry Application
    The Zoning Hearing Board
    The Hearing Process
    The Decision
    Appeals 

The Quarry Application

1. In March 2001, Gibraltar Rock Inc. submitted a zoning application to New Hanover Township for a permit to operate a quarry on 163+ acres surrounded by routes 73, 663, and Coleflesh Road.
2. In a written statement, the township zoning officer denied the permit, because it was incomplete, lacked required environmental information, was unclear, and most importantly because the New Hanover Township zoning ordinance does not allow quarries within either Heavy Industrial (HI) or Light Industrial (LI) zones without an exception.
3. In a written appeal, attorney, Stephen B. Harris Esq., representing Gibraltar Rock, challenged the validity of the New Hanover Township zoning ordinance.  It is their belief that, although part of the area is zoned Heavy Industrial, it is too small an area to economically quarry. Therefore, they requested a special exception to the township ordinances to quarry in the Light Industrial area also.
4. In April the New Hanover Township supervisors authorized the Zoning Hearing Board to convene and hear Gibraltar Rock’s case in open public meetings.  
5. The first Zoning Hearing Board meeting regarding the proposed quarry was held on May 3, 2001. 

The Zoning Hearing Board

According to the Pennsylvania Department of Community and Economic Development, municipalities who enact zoning ordinances must create a zoning hearing board.  A zoning hearing board has no legislative power---it cannot make, modify, or enforce zoning ordinances; its primary function is to help assure fair and equitable application of the zoning ordinances of the municipalities they represent. 

A zoning hearing board consists of three to five members and may employ legal counsel (the solicitor).  The solicitor’s primary role is to advise the board during hearings.  New Hanover Township’s Zoning Hearing Board consists of five members.  Edward A. Skypala Esq. is the board’s solicitor and acts as moderator during the hearing meetings.

The Hearing Process

A zoning board hearing may last just one meeting or as many as it takes to allow the applicants, the township, and interested residents to complete their case.  It is conducted like a civil trial---evidence is presented and cross-examined.  Witness testimony is sworn and attorneys may object to testimony they find irrelevant, immaterial, or repetitious. The zoning hearing board, as a fact finder, may accept or reject testimony.

• To date, the New Hanover Zoning Hearing Board meetings have consisted of testimony by expert witnesses for Gibraltar Rock.  These witnesses will be called in the order attorney Harris believes is best for his case.  Testimony will be presented on traffic studies, zoning permits, hydrologic studies, and environmental impact, as well as economic and financial issues.

In a zoning hearing, the township supervisors are actually the defendants---in our case, the New Hanover Township supervisors are defending their decision to deny a permit. 

• Robert L. Brant, Esq. representing the township supervisors, may question and cross-examine all witnesses, as would a defense attorney in any civil trial.

Unlike a civil trial, at a zoning hearing board meeting, other people besides attorneys may question and cross-examine witnesses. 

• During the New Hanover Zoning Hearing Board meetings, any township resident (or anyone outside the township) has the right to question or cross-examine a witness.  As long as the resident (or their own attorneys) ask questions about a witnesses’ testimony, the applicant’s attorney does not have the right to attempt to disqualify a resident with a legitimate question. 

Note:  Recently the applicant’s attorney, Mr. Harris has tried to bar residents from speaking and asking questions of his witnesses, based on the resident’s proximity to the proposed quarry.  He does not have this right---anyone who lives in New Hanover Township has the right to question witnesses at Zoning Hearing Board meeting.

• After attorney Harris has presented his witnesses and cross-examination is complete, the township solicitor, Robert Brant, will present his case.  He may use their own witnesses, which may include experts in traffic, zoning permits, hydrology, environmental impact, and economic impact.  Groups such as the “Citizen’s Organization to Ban the Quarry” may also employ attorneys to present their own case.

• During this phase, the applicant’s attorney is allowed to cross-examine all witnesses presented by the township or attorneys for the citizen group.

Decision of the Zoning Hearing Board

• At the end of the hearings, the zoning hearing board has 45 days to write their decision and communicate it to the applicant, township, and public.

• If the Zoning Hearing Board rules in favor of the applicant, the applicant is free to file a permit with the Department of Environmental Protection.

• If the Zoning Hearing Board rules against the applicant, the applicant will most likely appeal the ruling.

The Appeal Process

• There are three levels of appeal through Pennsylvania courts.

• The first appeal is to the Pennsylvania Common Pleas Court.  Whoever looses may next appeal to the Commonwealth Court of Appeals.

Note:  Generally, appeals are heard based on the record of the testimony documented during the Zoning Hearing Board meetings and a written brief.  The lawyers do not argue the case and only occasionally is new evidence allowed.

Also, at each level the court can do one of three things: uphold the original decision, reverse it, or send it back to the lower court.

• The last Pennsylvania court of appeal is the Pennsylvania State Supreme Court.  The PA Supreme Court must decide whether or not to hear the case. The decision of the PA Supreme Court is final.