Gibraltar Rock and Zoning Hearing Board – Application #4
In early 2015, Gibraltar Rock filed a 4th application with the New Hanover Zoning Hearing Board, asking for a special exception to quarry on a combination of newly acquired acreage (approx. 25 acres) and several other parcels that were included with a previous application, for a total of approx. 82 acres.
The Zoning Hearing Board began monthly meetings with Gibraltar Rock in April 2015. From August 2015 through February 2016, the zoning meetings were postponed, then resumed later in 2016. These hearings continued into 2017, concluding with an opportunity for the public to testify before the Zoning Hearing Board.
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The Paradise Watchdogs/Ban the Quarry was represented by Rowan C. Keenan, Esq. of the KCA law group in Collegeville, PA. Gilbert Marshall, of Marshall Geoscience in Collegeville, was hired as our expert witness. He testified to his belief, with a reasonable degree of certainty, that if the quarry is permitted to engage in blasting at this location, the hazardous chemicals would be released from the original site (Hoff VC HSCA site / Good Oil Company) and migrate south, southwest, and southeast, thereby affecting more private properties, the Swamp Creek Watershed, and possibly the Perkiomen Watershed.
In September 2017, the New Hanover Zoning Hearing Board rendered their decision on this 4th application. The zoning board found our expert’s testimony credible, and also the testimony of the township’s expert, Toby Kessler. The decision has been appealed by New Hanover Township, Gibraltar Rock, and the Paradise Watchdogs.
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[The text below was added on January 27, 2020.]
On January 22, 2019, three residents traveled to Norristown to the court hearing, along with our attorney, Rowan Keenan, and several members of the PWD committee. The residents testified of their belief that their private wells would be affected by blasting close to the hazardous waste site. They showed their proximity to the Swamp and Scioto creeks, and explained the potential effects to their family and livestock.
On Jan 23, 2019, the Judge rendered his decision and granted our Petition to Intervene in the appeal. This means that the PWD-BTQ can join the appeal on behalf of the residents. We send a huge thanks to the residents who testified at this court hearing – and to those who attended the hearing.
Appeal of the GR-4 zoning board decision:
The appeal was heard on July 9, 2019, in the Court of Common Pleas, Norristown, PA. Some area residents joined us in Norristown for this hearing. We were encouraged to hear that Judge Saltz is concerned about the welfare of the people here. He asked many questions about our position - that the quarry should not be started until the Hoff VC site is cleaned-up by the Dept. of Environment Protection (DEP). We are grateful that our township leaders agree with us on this.
Our township solicitor, Andy Bellwoar, presented two simple arguments. One is the law that quarrying operations can only be conducted in the HI-Heavy Industrial areas but that Gibraltar Rock is attempting to use the LI- Light Industrial for some of the quarry operations. Andy's second argument (meaning a majority of the Supervisory Board agrees) was that of major importance is the health, safety, and welfare of the residents.
Our attorney, Rowan Keenan, was forceful and convincing in his arguments. He explained that the ZHB found our expert witness was “credible” in his report. Rowan tried to convince the Judge that the scientific findings should not be ignored, and that our expert proved beyond doubt what will happen if the quarry is permitted to blast with dynamite prior to the total clean-up of the hazardous waste site.
The Judge asked many questions of both Gibraltar Rock’s attorney and the Zoning Board attorney about the Hoff VC site, clean-up plans, and regulations if the toxic waste goes into the quarry pit. Township attorney, Andy Bellwoar, told the Judge that for 20 years now, Gibraltar Rock has never addressed the safety, health, and welfare of the community.
Judge Jeffrey Saltz, Court of Common Pleas: August 16, 2019 Decision
The Judge upheld the ZHB order that Gibraltar Rock is entitled to a “special exception” by state law, but can only operate a quarry in the HI – Heavy Industrial zones.
The ZHB attached “16 conditions” to this special exception to quarry. These are requirements by the ZHB. Judge Saltz modified five of the conditions. Some modifications benefit us, and some benefit Gibraltar Rock.
1) The Judge upheld the condition that “all berms should be within 100-feet of the Heavy Industrial and Light Industrial boundaries. This is a huge win for us – as Gibraltar Rock has tried to ignore the boundaries.
2) The ZHB’s requirement for the operation of “crushers” was modified by the Judge. “Applicant shall operate crushers only during daylight hours. At such time as the quarry is established and there is an actual quarry pit, the applicant shall operate crushers only below ground level.”
3) Years ago, the court ordered Gibraltar Rock to “merge all properties used in quarrying into one deed”. Gibraltar Rock has never complied. Judge Saltz ordered: “Gibraltar Rock shall merge all property that it owns and that is used in quarrying operation into one (1) deed. Sahara Sand shall merge all property that it owns and that is used in quarrying operation into one (1) deed.”
Our attorney, Rowan Keenan, agrees that these are separate companies, therefore, the parcels owned by two different companies cannot be merged into one deed. We will be watching this to make sure they comply.
Rowan explained that this is a win for us. When Gibraltar Rock has only two parcels (after all parcels are merged into two), only one heavy industrial operation is allowed on each parcel. This will be difficult for Gibraltar Rock because they have several operations that must be in the HI. Extracting stone, crushing stone, and a concrete facility are all heavy industrial operations. This means our township can restrict Gibraltar Rock in the land development process.
4) The Zoning Board wrote, “Applicant shall maintain an “evergreen” bond in the amount of $250,000 for contamination and toxic waste clean-up on the site in a form acceptable to the Township Solicitor.”
The Judge changed this to: “Applicant shall maintain an “evergreen” bond in the amount of $250,000 for contamination and toxic waste clean-up on the site in a form acceptable to the Township, until the Dept. of Environmental Protection requires a bond for toxic waste cleanup or provides a specific dollar amount for groundwater remediation in the bond calculation summary sheet.”
5) The Zoning Board wrote, “Applicant shall not conduct quarrying operations on the subject site below the level they encounter groundwater that would have to be pumped for fifteen (15) years from the date of this Order.”
The Judge ruled that this condition be “stricken”. Rowan explains that it will be a good ten years (once the quarry begins digging) before water will need to be pumped from the pit, and before contamination will be in the water.
Our summary of the “conditions” appealed by Gibraltar Rock:
Condition ‘d’ - We won. G.Rock lost.
Condition ‘k’ - We agree with this change.
Condition ‘l’ - We agree. G.rock won this. They will have two parcels rather than one.
Condition ‘m’ - We agree with this change.
Condition ‘n’ - We didn’t win or lose. The DEP will decide on this in G.Rock’s NPDES permit.
Judge Saltz decided that the New Hanover Zoning Hearing Board did not abuse its discretion or commit an error of law, and therefore the ruling of the ZHB should not be disturbed.
The Judge says that before the Zoning Hearing Board, the Township and protestants (Paradise Watchdogs/Ban the Quarry) presented evidence of potential contamination of groundwater that would result from the quarry operation, in order to show a detrimental effect on the health, safety and welfare of the community. Gibraltar Rock presented their own evidence in opposition.
The Judge ruled that groundwater contamination concerns are preempted by the Non-Coal Act. And, according to the Non-Coal Act (Penna. law), the quarry must first obtain a mining permit, issued by the Dept. of Environmental Protection (DEP).
The law gives the DEP regulatory authority to protect public health and safety in the operation of a surface mine. The DEP has the right to enter and inspect the mining operation to determine the conditions of health or safety. The DEP has the right to impose civil and criminal penalties for violations of the Non-Coal Act. Any person (close to the quarry) who is adversely affected can file for injunctive relief against the DEP for failure to act.
So, on the issue of health, safety and welfare - the township can’t protect us. The court can’t protect us. Because the state mining law says that it’s the responsibility of the DEP to protect us. This is the “preemption principle”.
Judge Saltz also stated, “The Court does not pass on the merits of the environmental issues argued by the Township and individual intervenors (Ban the Quarry). Those issues are of significant concern. But the Township’s appeal, and Ban the Quarry’s appeal, must fail because it is based on matters that are preempted. The Non-Coal Act commits these environmental concerns to the scientific engineering and legal expertise of the DEP.”
In other words, it is not the duty of our zoning hearing board or the courts to protect us, but the DEP’s responsibility to do so.
After reading this court decision, the Township has decided not to appeal the Court’s decision. Our attorney also advises that we not file an appeal. He found only one appealable item and advises that issue can be dealt with when Gibraltar Rock files their final land development plan.