Clinton Properties, Inc. & Pioneer Aggregates, Inc. v. Fell Twp. ZHB & Fell Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clinton Properties, Inc. and :

Pioneer Aggregates, Inc., :

Appellants :

v. : No. 283 C.D. 2024

:

Fell Township Zoning Hearing Board : Argued: April 8, 2025

and Fell Township :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE STACY WALLACE, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: February 3, 2026

Clinton Properties, Inc. and Pioneer Aggregates, Inc. (collectively

Appellants) appeal from a February 8, 2024 decision of the Court of Common Pleas

of Lackawanna County (trial court) affirming the December 15, 2021 decision of the

Fell Township (Township) Zoning Hearing Board (ZHB). In its decision, the ZHB

denied Appellants’ appeal of a notice of violation or enforcement notice (Notice)

sent to Appellants for alleged violations of the Township Zoning Ordinance (2002

Zoning Ordinance or Ordinance). After review, we affirm.

I. Factual and Procedural Background

Appellant Clinton Properties, Inc. is the current owner of an

approximately 700-acre parcel of property (the Property) located in the Township

that it acquired in April of 1991. (Reproduced Record (R.R.) at 3a.) Appellant

Pioneer Aggregates, Inc. currently leases the Property and has leased it since it was

acquired by Clinton Properties. Id. at 2a-3a. The Property is located in an S-1

Conservation Zone, which is identified as a “Conservation District.” The Township

strictly limits the activities or uses that it allows in its S-1 Conservation zones.1

Section 9.210 of the Township’s 2002 Zoning Ordinance provides that “[n]o person

shall . . . alter the use of any land. . . until a Zoning Permit has been issued by the

Zoning Officer.”2 (2002 Zoning Ordinance at Section 9.210; R.R. at 201a.)

In the past, portions of the Property have been used for the purpose of

surface mining or operating a rock quarry. While mining is not generally allowed

in an S-1 Conservation Zone, Appellants were able to engage in this activity after

obtaining permits from the Pennsylvania Department of Environmental Protection

(PA DEP) in approximately 1991 as well as a special exception3 from the ZHB

which they acquired at roughly the same time. (R.R. at 203a, 240a.) The PA DEP

1

The Township’s 2002 Zoning Ordinance divides the Township into eight zoning districts,

differentiated according to building regulations and permitted uses. (2002 Zoning Ordinance at

Section 2.100.) (Original Record (O.R.) at Exhibit T-14, p. 2-1.) (Certain portions of the Zoning

Ordinance are not in the reproduced record but are in the original record.) Section 2.400 of the

Ordinance ranks the zones according to their degree of restrictiveness. Of the eight zones specified

in the Ordinance, only the R-1 and R-2 Residential Zones are more restrictive than the S-1

Conservation Zone. (R.R. at 210a-11a.) The area where the Property is located has been zoned

S-1 at least since 2002, when the Township issued its 2002 Zoning Ordinance. The area continues

to be zoned S-1. (ZHB decision, Finding of Fact (F.F.) 2; R.R. at 3a, 27a.)

2

The Ordinance also provides that “[w]here a use is specifically enumerated in a less

restrictive zone, such use shall not be permitted in a more restrictive zone unless it is specifically

enumerated as a permitted use therein.” (2002 Zoning Ordinance, Section 2.400(c); R.R. at 210a-

11a.)

3

“A special exception is not an exception to the [] Ordinance, but rather a use which is

expressly permitted, absent a showing of a detrimental effect on the community. Manor

Healthcare Corporation v. Lower Moreland Township Zoning Hearing Board, 590 A.2d 65, 70

(Pa. Cmwlth. 1991) (citations omitted). “The applicant for a special exception has both the duty

of presenting evidence and the burden of persuading the [ZHB] that the proposed use satisfies the

objective requirements of the ordinance for grant of special exception.” Id.

2

permits were issued pursuant to the Pennsylvania Noncoal Surface Mining

Conservation and Reclamation Act4 (Noncoal Act) and the Surface Mining

Conservation and Reclamation Act (Surface Mining Act).5 No time limit was placed

on the ZHB’s special exception. (R.R. at 239a.) On November 3, 2007, the PA

DEP reissued Appellants’ permit under the Noncoal Act. (R.R. at 138a.) The

reissued permit stated that it “shall not be construed to sanction any act otherwise

forbidden by federal or state law or regulation, or by local ordinance, nor to

[preempt] any duty to obtain state or local assent required by law for the noncoal

mining activity.” (R.R. at 140a.) It also stated that “nothing in this permit shall be

construed to relieve the permittee from any responsibilities, liabilities, or penalties

to which the permittee may be subject under federal, state, or local laws.” Id.

On July 11, 2016, Appellants applied to PA DEP for a Demonstration

Facility Permit6 (Demonstration Permit) authorizing the use of approximately 2.5

acres of the Property for a demonstration project. The 2.5 acres is part of a larger

area covered by their Noncoal Act permit. (F.F. No. 3; Supplemental Reproduced

Record (S.R.R.) at 40b-41b.) On September 21, 2017, PA DEP’s Bureau of Land

Recycling & Waste Management issued Appellants’ requested Demonstration

Permit allowing them to begin operations “based on a new or unique technology for

4

Act of December 19, 1984, P.L. 1093, as amended, 52 P.S. §§ 3301-3326.

5

Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. §§ 1396.1-1396.19b.

6

On August 15, 2016, PA DEP issued a correction to Appellants’ Noncoal Act permit to

add the location of the demonstration project. (R.R. at 167a.) The Demonstration Permit states

that it does not authorize any activity on the permit issued under the Surface Mining Conservation

and Reclamation Act.

3

disposing of municipal waste.”7 (F.F. No. 7.) Appellants, however, did not obtain a

special exception from the Township for the use of the Property to operate the

Demonstration Facility, which the Township alleges is a violation of Section 9.210

of the 2002 Zoning Ordinance which requires a Zoning Permit from the Township

Zoning Officer before the use of land in the Township is altered. (R.R. at 201a.)

The PA DEP’s Demonstration Permit described the newly permitted

activity, which involved the mixing of a waste product known as C&D fines in a

pugmill with water and cement to achieve a mixture consisting of 6% Portland

cement. (F.F. No. 4.) The resultant product creates a lightweight concrete which

Appellants planned to place in a quarry hole on the Property. (F.F. Nos. 6, 7, 10.)

The purpose for creating the product was to produce a material with limited

permeability and sufficient strength to support re-use of the quarry for light

commercial/industrial development. (F.F. No. 11.)

The new Demonstration Permit allowed the demonstration project to

operate for a fixed term not to exceed one year from the date of construction

certification. (R.R. at 77a.) The project’s approved capacity was 90,000 cubic yards.

The permit also stated that it was conditioned on compliance with the Pennsylvania

Solid Waste Management Act. 35 P.S. §§ 6018.101-108, and other statutes

regulating municipal waste including the Municipal Waste Planning, Recycling and

Waste Reduction Act, 53 P.S. §§ 4000.101-104, the Clean Streams Law, 35 P.S.

§§ 691.1-691.1001, and the Air Pollution Control Act, 35 P.S. §§ 4001-4015. (R.R.

at 90a.) It further stated that “[n]othing in this permit shall be construed to supersede,

amend or authorize violation of the provisions of any valid and applicable local law,

ordinance or regulation, provided that such local law, ordinance or regulation is not

7

The Demonstration Permit stated that “[t]he demonstration is for processing of

construction & demolition waste fines (C&D fines) to produce Re-Crete, and the placement of Re-

Crete to reclaim a portion of the Simpson Quarry.” (R.R. at 89a.)

4

preempted by the Pennsylvania Solid Waste Management Act and the Municipal

Waste, Planning, Recycling and Waste Reduction Act.” (R.R. at 91a.)

On August 15, 2016, PA DEP issued a correction to Appellants’ permit

issued under the Pennsylvania Noncoal Surface Mining Conservation and

Reclamation Act (Non-Coal Surface Mining permit) to add the location of the

Demonstration Facility to the Surface Mine permit.8 (R.R. at 167a.) On March 29,

2018, PA DEP issued an additional permit modification/correction to Appellants’

Surface Mining Permit. This permit modification contained the following Special

Condition:

If odor and/or vector control problems become evident at

any time, the Department will require that all corrective

measures, including removal of any and all Recrete

material, be initiated immediately upon notice of the

Department. If the problems cannot be corrected or

remediated on a consistent basis, the Department reserves

the right to rescind this approval/permit correction.

(R.R. at 175a.)9

Also in 2018, Petitioners filed with the ZHB an application entitled

“Application of Simpson Stone Quarry for Change in Use in Relation to the Backfill

and Reclamation of Disturbed Areas.” (R.R. at 18a, 21a-24a.) On December 12,

2018, the ZHB held a hearing to consider this application; however, neither Mark

8

This permit contained Special Conditions, which included No. 9, “The reclamation plan

for this operation is approved with an option for reclamation with clean fill” and No. 10, a

statement that the modification was “for establishing the location only for the proposed

Demonstration Facility” and that “[t]he installation and operation of the Demonstration Facility is

contingent upon final approval by the NERO’s Waste Management Program.” (R.R. at 169a.)

9

The March 29, 2018 modification also stated that “[t]he reclamation plan for this

operation is approved as a water impoundment with an option for reclamation with Mine

Reclamation Fill.” (R.R. at 175a.)

5

Popple, a representative of Appellant Clinton Properties, nor his attorney attended

the hearing.10 Id. at 18a-19a. At the hearing, the Chairman stated that he had

received a letter on December 12, 2018, from Mr. Popple indicating that he had

withdrawn his application for a use variance for the Property and that he would not

be attending the hearing. Id. at 23a.11

Appellants began processing C&D fines to produce the lightweight

concrete mixture on the Property on or about June 12, 2019, and continued their

activities until approximately June 12, 2020. Id. On January 1, 2020, Appellants

entered into a new lease under which the previous lease was modified to reflect that

the rental payments paid by Pioneer Aggregates to Clinton Properties from then on

would be based on a per-ton fee paid by third-party waste transporting and

processing facilities who wish to deposit C&D fines on the site. (F.F. Nos. 9, 15;

S.R.R. at 1b-5b.) During the year that the demonstration project was in operation,

the site did not reach the maximum limit allowed by the Demonstration Permit of

90,000 cubic yards of C&D fines. (F.F. No. 18.)

On January 16, 2020, the Township issued a Notice to Appellants

regarding the activities occurring on the Property. (R.R. at 199a.)12 On November

2, 2020, the Township enacted a new zoning ordinance (2020 Zoning Ordinance)

which repealed the previous 2002 Zoning Ordinance. Thereafter, on November 30,

10

The hearing was a continuation of a previous hearing held on November 7, 2018.

11

Because the application had been withdrawn, the ZHB closed the hearing without taking

witness testimony, but did accept input offered by the meeting attendees. (R.R. at 24a.)

12

Appellants suggest that the January 16, 2020 Notice was the second of three Notices that

they received. (Appellants’ Br. at 14) (“Triggering this current case was a [t]hird [Notice of

Violation] of November 30, [2020] by Fell to Pioneer.”) Appellants assert in their brief that they

also received a Notice from the Township dated June 13, 2019. (Appellants’ Br. at 37.)

6

2020, the Township withdrew and replaced its January 16, 2020 Notice because the

Township’s Zoning Officer who had issued the earlier Notice was no longer

employed by the Township. (R.R. at 199a.) Both Notices were issued with respect

to alleged violations of the Township’s 2002 Zoning Ordinance occurring on the

Property while the 2002 Zoning Ordinance was in effect. Id.

The Notice informed Appellants that their use of the Property under the

Demonstration Permit constituted activity that did not fall within the parameters of

Appellants’ special exception for mining uses. It informed them that they were

required to obtain a special exception and a permit from the Township to allow the

new uses. (R.R. at 199a-202a.) The Notice explained that

[t]he new use constitutes a Solid Waste Disposal Area

(Sanitary Landfill), which is regulated under Section

5.90 of the [2002 Zoning Ordinance] and is permitted in

the I-1 Zoning District,[13] not the S-1 [Conservation

Zone]. (citation omitted.) Moreover, Section 2.400(c) of

the [] [2002 Zoning Ordinance] states that “where a use is

specifically enumerated in a less restrictive zone, such use

shall not be permitted in a more restrictive zone unless it

is specifically enumerated as a permitted use therein.”

Furthermore, Section 2.500 of the [] [2002 Township

Zoning Ordinance] only permits listed uses and no other

uses in the zone where the [Property] is located.

Therefore, a use variance is required for the new use.

(R.R. at 200a.) (emphasis added).

The Notice further stated that the activity being conducted on the

Property also constitutes a manufacturing use under the 2002 Zoning Ordinance.

It stated that while “there is no such term defined in the [] Township Zoning

Ordinance, Merriam-Webster dictionary defines manufacturing as ‘the act or

13

The I-1 Zoning District allows industrial uses to be carried out within its confines. See

2002 Zoning Ordinance, O.R. at T-14, p. 2-1.

7

process of producing something.’” (R.R. at 201a.) (emphasis in original) The

Notice then stated that the North American Industrial Classification System

(NAICS) also defines a manufacturing use as “[e]stablishments engaged in the

mechanical, physical, or chemical transformation of materials, substances, or

components into new products.” Id. (emphasis in original)

According to the Notice, a manufacturing use, like a Solid Waste

Disposal Area (Sanitary Landfill) (landfilling), is not permitted in any zoning district

other than the I-1 Industrial District and is not permitted in the S-1 Conservation

Zone. Therefore, because neither use of the Property was permitted in an S-1

Conservation Zone, use variances were required before Appellants could engage in

the activities or uses now being carried out under the Demonstration Permit. Id. The

Notice further informed Appellants that a zoning permit was also required for these

uses of the Property but that such a permit would not be issued until the use variances

were first granted by the ZHB. Appellants were given 30 days to complete the

enclosed Zoning Permit Application and return the application and applicable fee.

(R.R. at 201a-02a.)

Appellants timely appealed the Notice to the ZHB, which held 17

hearings for the purpose of taking testimony and receiving documentary evidence

relating to Petitioner’s appeal.14 (R.R. at 2a.) The ZHB held a hearing on July 29,

2021, to consider Appellants’ appeal. At the hearing, Roger Bellas, a representative

of PA DEP, explained that under Section 271.501 of the PA DEP’s regulations

governing Municipal Waste Processing or Disposal Facilities, 25 Pa. Code

14

The ZHB held hearings on February 25, 2021, February 26, 2021, April 18, 2021, June

22, 2021, June 23, 2021, July 19, 2021, July 29, 2021, August 2, 2021, August 5, 2021, August

25, 2021, August 26, 2021, September 2, 2021, September 9, 2021, September 20, 2021,

September 23, 2021, September 30, 2021, and November 4, 2021. (R.R. at 2a.)

8

§ 271.501,15 the Demonstration Permit issued to Appellants allows for the operation

of municipal waste or disposal facilities based on a new or unique technology for

processing or disposing of municipal waste. (ZHB Finding of Fact (F.F.) No. 7; R.R.

at 4a.) Mr. Bellas agreed with counsel that it would “be a fair characterization that

for purposes of the demonstration permit we’re talking about a new use[].” (R.R. at

Item 8, N.T. at 10.) He further testified that he considers the product created by the

mixing of cement, C&D fines, and water to constitute the manufacture of a new

product and he agreed with the following statement: “So by bringing in this waste

and mixing it with Portland cement, in [PA] DEP’s definition it creates a new

product?” (R.R. at Item 8, Notes of Testimony (N.T.), at 10, 87.) Finally, he also

stated that in his opinion the material they are dealing with for purposes of the

demonstration facility is municipal waste and the facility being operated under the

Demonstration Permit is a waste processing facility. Id. at 10, 86. Similarly, Mr.

Popple testified before the ZHB that the purpose of the Demonstration Permit was

to demonstrate a new use and that he had not used the material now being used on

the Property to reclaim other pits in the state. (S.R.R. at 36b-37b.)

15

Section 271.501 provides:

This subchapter applies to municipal waste processing or disposal

facilities, or parts of these facilities, that are based on a new or

unique technology for processing or disposing of municipal waste.

For purposes of this subchapter, a technology is considered new or

unique if it has not previously been demonstrated in this

Commonwealth or another comparable area. The Department may

approve in writing, as a permit modification, the demonstration of

new or unique technology for the processing or disposal of

municipal waste at permitted municipal waste processing or disposal

facilities if the requirements of this subchapter are met.

25 Pa. Code § 271.501.

9

During the hearing, the Township presented the expert testimony of

Thomas Shepstone, a municipal planner, with extensive experience in the drafting

and interpretation of municipal zoning ordinances, and received Mr. Shepstone’s

expert report. Mr. Shepstone reviewed the evidence and concluded that the disposal

of C&D fines and the mixing of them with water and Portland cement was a new

use at the site. He testified that the activities constituted a landfilling use. He defined

a “Sanitary Landfill” as an engineered land burial facility for the disposal of

household waste that is designed, constructed, and operated to contain and isolate

the waste so that it does not present a substantial present or potential hazard to human

health or the environment. He also stated that a sanitary landfill may receive other

types of solid waste, such as commercial solid waste, nonhazardous sludge,

construction demolition debris, and nonhazardous industrial solid waste. In his

expert report, he stated that the activity taking place on Appellants’ property made

use of a liner system. He stated that in his opinion, the use occurring at the Property

constituted a sanitary landfill under the 2002 Zoning Ordinance, and this use was

not permitted in an S-1 Conservation Zone. Mr. Shepstone also testified that

Appellants’ production of the C&D fines and cement mixture at the site was a

product manufacturing process, and that manufacturing also was not a permitted use

in an S-1 Conservation Zone. (F.F. No. 21.)

The ZHB also heard expert testimony from John R. Varaly, a municipal

planner and received Mr. Varaly’s Expert Witness Report. (F.F. No. 22; R.R. at

162a-66a.) According to Mr. Varaly, the Demonstration Permit authorized the

processing of C&D fines with Portland cement for the sole purpose of reclamation

of a portion of the site. He also asserted that reclamation is an essential component

of the operations of noncoal mining. Therefore, he argued that the use Appellants

were making under the Demonstration Permit was not a new use, but rather a use

connected with mining, for which Appellants had a special exception from the

10

Township, and therefore the use did not violate the 2002 Zoning Ordinance. (R.R.

at 162a.)

An additional witness for Appellants, Kathryn Murray, testified

regarding the process for producing the mixture of cement and C&D fines, and that

the product being produced under the Demonstration Permit could be used for mine

reclamation. (S.R.R. at 15b-16b, 20b-21b, 23b-24b.)

The ZHB’s Decision

On December 15, 2021, the ZHB issued its decision, containing the

following pertinent Findings of Fact:

....

....

3. The [A]ppellant, Pioneer Aggregates, Inc.[,] applied for

a permit with the Pennsylvania Department of

Environmental Protection (PA DEP) for a Demonstration

Facility Permit for use of approximately 2.5 acres of land

for a demonstration project as described in the Application

document which is Pioneer Exhibit 65. The date of the

Application is July 16, 2016.

4. On September 21, 2017, PA DEP granted the permit

for the demonstration project. The PA DEP granted a

Municipal Waste Demonstration Permit: Permit Number

101713. The permit allowed for the: “processing of C&D

fines and placement of Re-Crete. Re-Crete is a material

formulated by blending Portland Cement and C&D fines

in a pugmill to achieve a mixture of 6% Portland cement.”

The permit limited activities to a 2.5-acre site on the

property as shown on a map that was attached as an exhibit

to the application. The approval letter is Exhibit 13

submitted by Fell Township.

....

11

6. The [A]ppellant, Pioneer Aggregates, Inc.[,] presented

evidence from an engineer, Kathryn Murray. This

testimony established that the site of the demonstration

project was located within a larger area previously

licensed by PA DEP under a non-coal surface mining

permit. 9/2/21. Transcript; p.4. The process for

producing the Re-Crete product is described in the

testimony of Kathryn Murray as mixing C&D fines with

Portland cement. This is also explained in the application

for the demonstration permit which is Pioneer Exhibit 65.

The process was also explained by Mr. Popple; Transcript

7/29/21, p. 29. The fines are mixed with water and

Portland cement and loaded into a hopper which is part of

the pugmill. The water is located in an underground

storage tank. The mixture of water, C&D fines and

Portland cement are controlled by a computer which

ensures a consistent product. The product which is

produced is tested at the site to determine if it complies

[with the] parameters for the product. 9/2/21 Transcript;

p. 74-76; 91-95. The resultant product creates a

lightweight concrete. 9/2/21 Transcript p. 100. See also

9/09/21 transcript; p. 108-111[.]

7. The Municipal Waste Demonstration Permit which was

obtained by Pioneer Aggregates was explained by Mr.

Roger Bellas of Pa DEP. He stated that Section 271.501

of Chapter 25 of the Pa. Code stated that the permit applies

to municipal waste processing or disposal facilities that are

based on a new or unique technology for processing or

disposing of municipal waste. This was confirmed by

Mr. Popple; 7/29/21 Transcript; p. 8-9.

8. The produce created by the mixture of cement, C&D

fines and water is considered by PA DEP to be a new

product; 8/02/2021 Transcript; p. 87. The mixture of

Portland cement and C&D fines binds any potential

contaminants and adds to its impermeability. The PA DEP

categorized this activity as waste processing and the

operation is categorized as a waste processing facility;

8/02/21 Transcript; p. 86.

12

9. The [A]ppellant, Pioneer Aggregates, Inc.[,] planned to

place the new product in a quarry hole which existed on

the property of Clinton Properties, Inc. Pioneer

Aggregates, Inc. and Clinton Properties, Inc. created a

new lease which provided in part that Clinton Properties,

Inc. would receive a royalty for each ton of C&D fines

delivered to the property for use in the process. 7/28/21

Transcript p. 44.

10. Once the new product is produced, it is tested for

compaction, strength and permeability. The tests are

required by the PA DEP permit 7/29/21[,] Transcript p.

66-67. The standards of compliance for the product are

set forth by PA DEP; 8/26/21 Transcript p. 4-5.

11. The purpose of the formulation of the product was to

create a product that would provide adequate strength

and have limited permeability to support re-use of the

quarry for light commercial/industrial development.

8/26/21 Transcript p. 21.

12. The NAICS code was entered into evidence. Pioneer

Aggregates, Inc. Exhibit 54. The definition of

manufacturing states: “The Manufacturing sector

comprises establishments engaged in the mechanical,

physical, or chemical transformation of materials,

substances, or components into new products.”

13. C&D fines were described as material generated from

construction and demolition projects. The C&D fines are

mostly generated from demolition projects and contain

numerous waste products from this activity. 7/29/21

Transcript p. 29-31. C&D fines are classified as waste

products; 8/02/21 Transcript p. 10. The C&D fines are

mixed with a 6% mixture of Portland cement and water to

form the new product.

....

13

15. The C&D fines were delivered to the site by waste

transporting and processing facilities which paid a fee to

deposit the C&D fines at the Clinton Properties, Inc.

property based upon the tonnage deposited at [t]his site.

16. The Municipal Waste Demonstration Permit Facility

ID#101713 was issued on September 21, 2017 by the PA

DEP and signed by Roger Bellas, Environment Program

Manager. The term of the permit [] is 5 years. The permit

provided for specific terms and conditions for the

depositing of the C&D fines. The maximum limit for

depositing fines was up to 90,000 cubic yards. There were

conditions precedent in the permit which had to be

satisfied by the applicant, Pioneer Aggregates, Inc. before

the processing of the waste C&D fines could be

commenced. Township Exhibit 13.

17. One of the conditions precedent was the modification

of a prior non-coal mining permit #35030301 and an

Anthracite Coal Surface mining Permit, Permit

Number 35910101 to allow for the work to be

performed at a Pre-Act Pit. This approval was granted

by PA DEP. Pioneer Aggregates, Inc. did identify in detail

the process for disposal of the waste; Township Exhibit

18. The application specifically stated that waste hauling

vehicles would access the facility via SR 171 and all

incoming vehicle[s] would be directed to a scale for

weighing of the waste. The waste was then to be unloaded

and inspected. Township Exhibit 15 and Pioneer

Aggregates, Inc. Exhibit 65

....

19. The Demonstration Permit Application describes the

liner system which was installed at the site as a

prerequisite to operation of the process. The primary

liner and the requirements for the bed of the liner were

specifically set forth in the application and were imposed

as a requirement for the permit when approved.

14

20. The Operation Plan, Phase II, of [] Form 14 of the

Demonstration Permit classifies the type of facility as a

“Construction/Demolition Waste Landfill.”

21. Fell Township did present the expert testimony of

Thomas Shepstone who is a municipal planner with

extensive experience in the drafting and interpretation of

municipal zoning ordinances. Mr. Shepstone evaluated

extensive evidence and concluded that the disposal of

C&D fines and the production of the mixture of C&D fines

with Portland cement and water were [] a new use at this

site. Fell Township Exhibit 12. This expert witness

opined as follows:

A. The 2002 Zoning Ordinance defined a Sanitary

Landfill as: “any facility devoted to the storage and/or

disposal of solid wastes pursuant to the regulations of the

[PA DEP] governing sanitary landfills.” However, there

is no such term in the PA DEP regulations. Mr. Shepstone

[] relied upon the definition in a recognized authoritative

source, the Merriam-Webster Dictionary.

B. The definition used by Mr. Shepstone defined a

sanitary landfill as: “Sanitary Landfill means an

engineered land burial facility for the disposal of

household waste that is so designated, designed,

constructed, and operated to contain and isolate the waste

so that it does not become a substantial present or potential

hazard to human health or the environment. A sanitary

landfill also may receive other types of solid waste, such

as commercial solid waste, nonhazardous sludge,

hazardous waste from conditionally exempt small quantity

generators, construction demolition debris and

nonhazardous industrial solid waste.”

C. Mr. Shepstone opined that the new use was a

“sanitary landfill” under the terms of the 2002 Fell

Township Zoning ordinance which was not permitted in

an S-1 zone.

D. The 2002 Zoning Ordinance of Fell Township

did not contain a definition for the term

“manufacturing.” Mr. Shepstone relied upon the North

American Industrial Classification System definition.

15

The system is relied upon by PA DEP for classification of

activities and was adopted by the United States Office of

Management and Budget and accepted as a source for

classification of commercial activities; Pioneer Exhibit 54.

Mr. Shepstone opined that the production of the C&D

fines mixture utilized by the Appellants was a product

manufacturing process at the site which was not a

permitted use in an S-1 zone. Fell Township Exhibit 12.

22. The Appellants presented testimony from John R.

Varaly, a municipal planner, who also submitted a report.

Pioneer Exhibit 63. Mr. Varaly opined in his testimony

and his report that the use described involving the

processing of the C&D fines was not a new use. This

opinion did not address the testimony of Mr. Popple or

Mr. Bellas noted above and importantly did not

consider the project description or the PA DEP

regulations which governed the Municipal Waste

Demonstration Permit which was granted to the

Appellant for use of this product based on the assertion

by the Appellant and requirements of the regulation

that this process was a new use.

23. On November 30, 2020, the Fell Township Zoning

Officer issued an Enforcement Notice/Notice of Violation

to Clinton Properties, Inc. and Pioneer Aggregates, Inc.

which alleged that the process of creating the mixture of

Portland cement, C&D fines and water to deposit in an

existing quarry pit was a new use and violated the

provisions of the Fell Township Zoning Ordinance of

2002.

(F.F. Nos. 3, 4, 6-13, 15-23) (emphasis added).

The ZHB’s decision then set forth the following pertinent Conclusions

of Law (COL):

....

16

5. The law of the Commonwealth of Pennsylvania requires

that the definition of a use as defined by a zoning

ordinance must be construed expansively so as to afford a

landowner the broadest possible use and enjoyment of his

land. Rabenold v. Zoning Hearing Board of Palmerton

Township, 777 A.2d 1257 (Pa. Cmwlth. 2001).

6. The [ZHB] must also consider the primary objective of

the zoning ordinance by considering the intent of the

legislative body that enacted the ordinance. THW Group,

LLC v. Zoning Board of Adjustment, 86 A.3d 330 (Pa.

Cmwlth. 2014).

7. Determinations as to credibility of witnesses and the

weight to be given to the evidence are matters to be left to

the [ZHB] in performance of its fact-finding role.

Borough of Youngsville v. Zoning Hearing Board of

Youngsville, 450 A.2d 1086 (Pa. Cmwlth. 1982). The

[ZHB] may elect to disbelieve a witness even if the

witness is uncontradicted. Roseberry Life Insurance

Company v. Zoning Hearing Board of the City of

McKeesport, 664 A.2d 688 (Pa. Cmwlth. 1995); Collier

Stone v. Zoning Hearing Board of Collier Township, 710

A.2d 123 (Pa. Cmwlth. 1998).

....

9. The [ZHB] has determined that the use identified in the

Notice of Violation and the evidence presented during

the hearings is a new use which commenced in June of

2019 and was not a nonconforming use that came into

existence prior to the enactment of the 2002 [] Zoning

Ordinance.

....

11. The Zoning Hearing Board determines that the

purpose of the identified process using a mixture of C&D

fines, Portland Cement and Water mixed by a

computerized machine and tested for compaction, strength

17

and permeability is to create and test a product for its

potential use in a variety of commercial applications.

....

15. The Zoning [Hearing] Board concludes that the new

use constitutes a manufacturing use under the applicable

Fell Township Zoning Ordinance. Although there is not

a defined term in the definitions section under the Fell

Township Zoning Ordinance, the Merriam-Webster

dictionary defines manufacturing as “the act or process of

producing something.” The North[] American Industrial

Classification System (NAICS) also defines a

manufacturing use as “Establishments engaged in the

mechanical, physical, or chemical transformation of

materials, substances, or components into new products.”

The new use of the Appellants produces a material

which is designed to meet certain parameters for

compaction, strength and permeability. This new

product has been created for various applications. This

manufacturing process is allowed in the I-1 Zoning

District, not the S-1 Zoning District. See Article 3, Table

1 of the Fell Township Zoning Ordinance of 2002.

Moreover, Section 2.500 of the Fell Township Zoning

Ordinance only permits listed uses and no other uses, and

Section 2.630 of the Fell Township Zoning Ordinance

serves to require compliance with these restrictions.

(COL Nos. 5-7, 9, 11, 15) (emphasis added.)

The ZHB further concluded that Appellants’ activities on the Property

also constituted a “Sanitary Landfill” and that “the [2002] Zoning Ordinance

regulates ‘Solid Waste Disposal Areas (Sanitary Landfills)’ under Section 5.590,

defining Solid Waste under [the] Definitions Section.” (COL No. 16.) It then noted

that the Ordinance’s definition was based on the PA DEP regulations, which did

not contain a definition for sanitary landfills. The ZHB therefore turned to the

dictionary definition relied upon by Mr. Shepstone in his testimony. (COL No. 16.)

18

Using this definition, the ZHB concluded that “the new use which is classified as a

Solid Waste Disposal Area (Sanitary Landfill) under the terms of the 2002 Zoning

Ordinance [] is not permissible in an S-1 Conservation Zone and this activity is

prohibited at the site.” (COL No. 17.)

With respect to the use made of the Property under the Demonstration

Permit, the ZHB concluded as follows:

18. The Appellants did contend that the use of producing

the concrete product on site was a pre-existing

nonconforming use. It was asserted that the production

of the product for placement in the Pre-Act pit qualified

the use as an act of reclamation as required by the above

identified mining statutes and was therefore a pre-existing

use.

19. The [ZHB] has determined that the creation of the

lightweight concrete product produced at the site and the

use of the Pre-Act pit for testing of this product for this

use is new to this site and, therefore, was not a

nonconforming use at this site. The law of this

Commonwealth directs that the landowner has the burden

of proof to prove that the use pre-existed the enactment

of the Zoning Ordinance. The case of Collier Stone v.

Zoning Hearing Board of Collier Township, 710 A.2d

123 (Pa. Cmwlth. 1998) is directly on point. In this

case a quarry presented evidence that it had accepted

concrete at the site and requested a permit to produce

precast concrete products. This permit was denied by

the municipality. The zoning hearing board

considered the appeal of the landowner. It was

determined that the manufacturing use of creating

precast concrete products was not a pre-existing use

even if concrete was used in prior quarry operations.

The manufacture of a concrete product was distinct

from quarry operations even if concrete was

previously used in the operation.

19

20. The [ZHB] in this case has determined that the

previous existence of the quarry did not incorporate the

identified manufacturing use. The claim of a pre-existing

nonconforming use was not established by Appellants

and their claim for this status is denied by the [ZHB].

(COL Nos. 18-20) (emphasis added).

In addition, the ZHB concluded:

10. The [ZHB] has determined that governing the

location of a new use is within the authority granted to the

municipality under the Municipalities Planning Code.

The location of a use is within the authority of a zoning

ordinance and is not pre-empted by the Noncoal [] Act

or the Surface Mining Act. Preemption occurs only

when the zoning ordinance attempts to control the

operational activity governed by a statute in the operation

of the regulated activity. [The Township] may determine

where a regulated activity takes place and this is the issue

which is identified in the Notice of Violation.

(COL No. 10) (emphasis added).

Appellants had argued before the ZHB that the Notice was invalid

because it was issued based on the 2002 Zoning Ordinance, but was issued at a time

when that Ordinance was no longer in effect. On this issue, the ZHB concluded:

8. The November 2020 Notice of [V]iolation must be

interpreted in accordance with the zoning ordinance in

effect on the date of violation. The 2002 [] Zoning

[O]rdinance was in effect at the time of the activity which

is the gravamen of the [N]otice of [V]iolation.

(COL No. 8.)

Finally, the ZHB concluded that the Notice must be interpreted in

accordance with the zoning ordinance in effect on the date of the violation, that the

relevant ordinance is the 2002 Zoning Ordinance, and that the case before it was

not moot because the activity addressed in the Notice was no longer occurring on

20

the Property. Here, the ZHB concluded that when the circumstances of a case are

capable of repetition but could easily evade review, a court will proceed to address

the merits of the claim raised. The ZHB observed that the Demonstration Permit

does not expire until 2022. It further observed that Appellants had not exhausted

their permitted capacity of 90,000 cubic yards of C&D fines at the Property and that

Appellants could possibly request an extension of the time limits specified in the

Demonstration Permit or could apply for other permits for the same use at the site.

(COL Nos. 13, 14.) Lastly, the ZHB concluded that the Township and its Zoning

Officer had satisfied their burden of proof to substantiate the violations described

in the Notice. The ZHB therefore denied Appellants’ appeal. (COL No. 21.)

The Trial Court’s Decision

Appellants appealed to the trial court, which did not conduct a hearing

or receive additional evidence. The trial court issued its order and accompanying

opinion on February 8, 2024, affirming the decision of the ZHB and dismissing

Appellants’ appeal. In its decision, the trial court held that the ZHB gave careful

consideration to the evidence presented by the parties and reached a conclusion that

was supported by substantial evidence and was not clearly erroneous. (Trial Ct.

Order and Opinion (Trial Ct. Op.), 2/8/24 at 4-5.)

II. Issues

On appeal, Appellants raise a large number of issues, which can fairly

be combined and reorganized for ease of disposition as follows: (A) whether the

ZHB abused its discretion or committed an error of law when it determined that

Appellants’ activities under the Demonstration Permit constituted both a sanitary

landfill use and a manufacturing use, but did not constitute mine reclamation;

(B) whether the Zoning Ordinance was preempted by the Noncoal Act; (C) whether

a Notice of Violation issued under a repealed ordinance is valid and whether the

case was moot; (D) whether the Township is barred from enforcing the 2002 Zoning

21

Ordinance due to a variance by estoppel or laches and whether Appellants’ activities

constitute the natural expansion of a nonconforming use; and (E) whether the ZHB

demonstrated bias, created a hostile environment for Appellants or engaged in

illegal ex parte communications.16

III. Discussion17

“[I]t is well settled that a zoning hearing board’s interpretation of its

own zoning ordinance is entitled to great weight and deference. Such deference is

appropriate because a zoning hearing board, as the entity charged with

administering a zoning ordinance, possesses knowledge and expertise in

interpreting that ordinance.” Kohl v. New Sewickley Township Zoning Hearing

Board, 108 A.3d 961, 968 (Pa. Cmwlth. 2015). “When interpreting zoning

ordinances, this Court relies on the common usages of words and phrases and

construes language in a sensible manner.” Hafner v. Zoning Hearing Board of Allen

Township, 974 A.2d 1204, 1210 (Pa. Cmwlth. 2009) (citation omitted). As this

Court has recently stated:

[A] zoning hearing board’s function is to weigh evidence,

and it is the sole judge of the credibility and weight of the

16

One of the issues raised by Appellants need not be addressed by this Court. Appellants

assert that the trial court erroneously employed an incorrect standard of review. However,

“because we review the zoning hearing board’s decision, we do not address arguments

challenging the trial court’s decision.” RDM Group v. Pittston Township Zoning Hearing Board,

311 A.3d 1216, 1224 (Pa. Cmwlth. 2024) (citing Pham v. Upper Merion Township Zoning

Hearing Board, 113 A.3d 879, 887 n.6 (Pa. Cmwlth. 2015)).

17

“Where the trial court has taken no additional evidence, appellate review is limited to

determining whether the zoning hearing board committed an error of law or a manifest abuse of

discretion.” Hertzberg v. Zoning Board of Adjustment, 721 A.2d 43, 46 (Pa. 2004). An abuse of

discretion will be found only where the zoning hearing board’s findings are not supported by

substantial evidence. Id. Substantial evidence is “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Id. We “may not substitute [our]

interpretation of the evidence for that of the ZHB.” Tidd v. Lower Saucony Township Zoning

Hearing Board, 118 A.3d 1, 13 (Pa. 2015).

22

witnesses’ testimony. A zoning hearing board is free to

reject even uncontroverted testimony it finds lacking in

credibility, including testimony offered by an expert

witness. We must view the evidence in a light most

favorable to the party that prevailed before the zoning

hearing board and afford that party all inferences

reasonably drawn from the evidence.

RDM Group v. Pittston Township Zoning Hearing Board, 311 A.3d 1216, 1223-24

(Pa. Cmwlth. 2024) (internal citations and quotations omitted).

A. Whether the Use of the Property Under the Demonstration Permit

Constituted Manufacturing and Landfilling and/or Reclamation

The Township’s Notice identified two specific new uses –

manufacturing and landfilling – occurring on the Property for which Appellants

had not obtained the required special exceptions and permits from the Township. In

this appeal, Appellants assert that the activities taking place on the Property pursuant

to its Demonstration Permit constitute mine reclamation, i.e., activities which are

regulated by the PA DEP and are not subject to the 2002 Zoning Ordinance. They

claim that the Township is using its 2002 Zoning Ordinance to regulate surface

mining and argue that the Noncoal Act specifically preempts any local ordinance

that attempts to regulate surface mining. (Appellants’ Br. at 9-11.)

We note, however, that Mr. Bellas testified that the PA DEP’s

demonstration “permit does not supersede local land use restrictions.” (R.R. at Item

8, N.T. at 13).

1. Manufacturing

Appellants assert that the ZHB erred when it concluded that the mixing

of C&D fines waste material from off-site third-party sources with cement and

water constitutes “manufacturing” under the 2002 Zoning Ordinance which is not

permitted in the S-1 Conservation Zone. They contend that the activity or use taking

23

place on the Property constitutes mine reclamation, not manufacturing. They

further claim that mine reclamation is not subject to the Township’s 2002 Zoning

Ordinance because the Noncoal Act preempts local regulations that purport to

regulate “surface mining” and “support activity.” (Appellants’ Br. at 20, 25.)

The ZHB determined that Appellants’ use of the Property can be

classified as manufacturing because the purpose of the process being carried out on

the Property “is to create and test a product for its potential use in a variety of

commercial applications.” (COL No. 11.) It stated “[t]he new use of the Appellants

produces a material which is designed to meet certain parameters for compaction,

strength and permeability. This new product has been created for various

applications.” (COL No. 15.) Based on the record evidence, the ZHB found that

the new use of Appellants’ Property constituted a manufacturing use under the 2002

Township Zoning Ordinance. Id.

The Zoning Ordinance limits manufacturing to I-1 Zoning Districts

and prohibits manufacturing in S-1 Conservation Zones. (R.R. at 9a.) However,

the Zoning Ordinance does not define the term “manufacturing.” (COL No. 15a.)

This Court has stated that undefined terms are to be given their plain meaning.

When required to review an undefined term in an ordinance, this Court has held that

a reviewing court may consult definitions found in statutes, regulations or the

dictionary for assistance. H.E. Rohrer, Inc. v. Zoning Hearing Board of Jackson

Township, 808 A.2d 1014, 1017 (Pa. Cmwlth. 2002). Therefore, the ZHB properly

consulted the Merriam-Webster dictionary when it found it necessary to define the

term “manufacturing.” The Merriam-Webster dictionary which defines

“manufacturing” as “the act or process of producing something.” (COL No. 15.) It

also considered the North American Industrial Classification System’s (NAICS)

definition of manufacturing, which defines “manufacturing” establishments as

“[e]stablishments engaged in the mechanical, physical, or chemical transformation

24

of materials, substances, or components into new products.” Id. Based upon these

two definitions, the ZHB concluded that Appellants’ use of the Property pursuant

to the Demonstration Permit constitutes a manufacturing use under the 2002 Zoning

Ordinance. Id. It further stated that the purpose of the process being carried out by

Appellants was “to create and test a product for its potential use in a variety of

applications.” (COL at 11.)

The ZHB also relied upon evidence presented to it during its hearings

in concluding that the activity taking place on the Property constituted

manufacturing. Such evidence included the testimony of Appellants’ witness, Mark

Popple, who testified that it was his understanding that the purpose of the

Demonstration Permit was to demonstrate a new use and that he had not previously

used the product being produced on the Property for mine reclamation.

It also included PA DEP representative Mr. Bellas’ testimony wherein

he agreed with the following statement: “So by bringing in this waste and mixing it

with the Portland cement, in DEP’s definition it creates a new product.” (R.R. Item

8, N.T. at 87.) With respect to the possible uses of the new product, Mr. Bellas

testified that “[t]he intent of the permit is to show that the proprietary product

ReCrete can be utilized as a structural fill in reclaiming old mine pits for future

development. It is also the intent to show that this material, ReCrete, can also be

able to be used for construction landscaping products.” Id. at 17.

Appellants’ witness, Kathryn Murray, also testified that the production

process for mixing the C&D fines with the other ingredients was not haphazard, but

rather was controlled by a computer, which ensured the production of a consistent

product. (S.R.R. at 15b, 37b.) The ZHB also heard the testimony of Mr. Shepstone,

the Township’s expert, who testified that in his opinion, the mixing of C&D fines,

Portland cement, and water constituted a manufacturing process. (F.F. No. 21(D);

R.R. at 8a.)

25

Because the activities occurring on Appellants’ property are being

carried out under a “demonstration permit,” we conclude that those activities should

be seen as part of the experimental phase of a manufacturing endeavor rather than

the manufacturing of an established product. Record evidence supporting this

conclusion includes a statement included in a letter from PA DEP’s Regional

Director, Michael Bedrin, to the Township, who stated that after the demonstration

project was completed, a report would be submitted to PA DEP analyzing the

effectiveness of the material “for reclamation and the environmental impacts of its

use.” (R.R. at 77a.) He further stated that the PA DEP report would help “to

determine if the demonstration project was successful and whether or not the

material can be beneficially used for similar projects elsewhere, or potentially,

continuation of the project at the Simpson Quarry.” Id. (emphasis added).

Based on the evidence of record and for the reasons discussed above,

we conclude that the ZHB’s finding that the activity being conducted on the Property

constituted manufacturing under the Zoning Ordinance is supported by substantial

evidence.

2. Landfilling

In its decision, the ZHB found that the activity being engaged in on the

Property pursuant to the Demonstration Permit also constituted a “Solid Waste

Disposal Area” or “Sanitary Landfill.” The 2002 Zoning Ordinance provides that

a sanitary landfill is “considered to be any facility devoted to the storage and/or

disposal of solid waste pursuant to the regulations of the [PA DEP] governing such

sanitary landfills.” (R.R. at 160a.) Because it found that PA DEP regulations do

not define the term “sanitary landfill,” the ZHB consulted the Merriam-Webster

dictionary definition of sanitary landfill. The Merriam-Webster dictionary defines

a sanitary landfill as follows:

26

An engineered land burial facility for the disposal of

household waste that is so located, designed, constructed

and operated to contain and isolate the waste so that it does

not pose a substantial present or potential hazard to human

health or the environment. A sanitary landfill also may

receive other types of solid wastes, such as commercial

solid waste, nonhazardous sludge, hazardous waste from

conditionally exempt small quantity generators,

construction demolition debris, and nonhazardous

industrial solid waste.

(COL No. 16) (emphasis added). After the ZHB determined that Appellants’ new

use of the Property constitutes a sanitary landfill, it stated that under the 2002

Zoning Ordinance sanitary landfills are not permitted in the S-1 Conservation Zone.

(COL No. 21(C).)

In making this finding, the ZHB relied upon the testimony of Mr. Bellas

of PA DEP, who stated that the permit granted to Appellants applies to municipal

waste processing or disposal facilities that are based on a new or unique technology

for processing or disposing of municipal waste. (F.F. No. 7.) The ZHB also found

that C&D fines contain numerous waste products and that C&D fines were delivered

to the site by waste transporting and processing facilities which paid a fee to deposit

the material at Appellants’ site. (F.F. Nos. 13, 15.) The ZHB noted that the

Operation Plan, Phase II, of the Demonstration Permit classifies the type of facility

being permitted as a “Construction/Demolition Waste Landfill.” (F.F. No. 20.) In

addition, the Township’s expert, Mr. Shepstone testified that in his opinion, the new

use was a “sanitary landfill” under the terms of the 2002 Township Zoning

Ordinance. (F.F. No. 21(C).)

We find that evidence of record supports the ZHB’s conclusion that the

operations carried out by Appellants on the Property constitute a Solid Waste

Disposal Area (Sanitary Landfill) which is regulated under the 2002 Zoning

27

Ordinance. First, we note that Appellants’ activities on the Property are being

carried out under the auspices of a PA DEP Demonstration Permit for a Solid Waste

Disposal and/or Processing Facility and that the Permit was issued by PA DEP’s

Bureau of Land Recycling and Waste Management, rather than by its Bureau of

Mining. (S.R.R. at 41b.) In addition, Mr. Bellas testified that the Demonstration

Permit is governed under Section 271.501 of PA DEP’s regulations which apply to

“municipal waste processing or disposal facilities.” 25 Pa. Code § 271.501. (R.R.

at Item 8, N.T., 8/2/2021 at 10.) Mr. Bellas also testified on behalf of the PA DEP

that “[t]he material that comes to the facility and is weighed through their scales

prior to processing is a municipal waste,” Id. at 10-11, and that he would “categorize

this facility as a waste processing facility.” Id. at 86.

Furthermore, the use being made of the Property fits the dictionary

definition of a sanitary landfill relied on by the ZHB because it is “an engineered

land burial facility” designed to “contain and isolate the waste so that it does not

pose a substantial present or potential hazard to human health or the environment.”

This definition of sanitary landfill also specifically includes facilities that receive,

inter alia, “construction demolition debris.” (R.R. at 15a, 200a.) See Mountz v.

Columbia Borough, 260 A.3d 1046, 1050 n.4 (Pa. Cmwlth. 2021) (stating that “[i]n

ascertaining the common and approved usage or meaning of statutory language, a

court may resort to dictionary definitions of terms left undefined by the legislature”)

(citing Leventakos v. Workers’ Compensation Appeal Board (Spyros Painting), 82

A.3d 481, 484 n.4 (Pa. Cmwlth. 2013)) (citation omitted).

In addition, Thomas Shepstone, whose testimony the ZHB credited,

testified that the activity being carried out on the Property constituted the operation

of a “Sanitary Landfill.” (R.R. at 71a-78a.) Finally, we note that the Demonstration

Permit itself defines “C&D Fines” as a waste material and that Appellants’ witness

testified that the operation generates income in the form of royalties for accepting

28

C&D fines from third parties. (S.R.R. at 4b.) Based on the evidence of record, we

affirm the ZHB’s finding that the use being carried out on the Property constituted

a waste disposal area or a sanitary landfill in addition to constituting the

manufacturing of a product.

3. Reclamation

In support of their argument that the use occurring under the

Demonstration Permit is not a new manufacturing use, Appellants claim that the

purpose of the demonstration project is to create a material which they are using to

reclaim a mining pit on the Property. They argue that the purpose of filling a quarry

hole on the Property with a mixture of C&D fines and 6% Portland cement is mine

reclamation, even though the work is being done under a Municipal Waste

Demonstration Permit. (Appellants’ Br. at 17.) In Appellants’ view, the existing

PA DEP permits preempt the local zoning ordinance if that ordinance attempts to

regulate a mining-related activity.

The ZHB rejected Appellants’ argument that they were engaged in

mine reclamation. (R.R. at 15a.) It found that the production of a lightweight

concrete product at the site and the use of a Pre-Act pit with no reclamation

obligations for testing this product was a use that was new to the site and that this

use was distinct from the prior mining or quarry operations carried out on the

Property. (R.R. at 15a-16a, 46a-47a.) Therefore, the new use did not constitute

reclamation.

We note that Section 771 of DEP’s Noncoal Act regulations defines

“reclamation” as “[a]ctions taken to reclaim the area affected by surface mining

activities as required by this chapter.” 25 Pa. Code § 77.1 (emphasis added).

Appellants, however, have not demonstrated or even claimed that the quarry hole

into which the C&D fines mixture is being deposited is a mine that they have an

obligation to reclaim. In fact, an email from Mr. Bellas of the PA DEP to Fell

29

Township included in the record states “[t]he pit being utilized for this demonstration

project was mined prior to reclamation requirements. (this is a Pre-Act mining pit)

There are no reclamation requirements for this pit in the mining permits.” (R.R. at

190a.) There also was testimony before the ZHB that the area where the mixture

was placed was not subject to reclamation obligations. (R.R. at 46a-47a.)

Moreover, the ZHB heard testimony from a mining engineer that he had

never seen a mixture of 6% Portland cement and C&D fines used for mine

reclamation. (R.R. at 223a.) Finally, Appellants’ witness, Mr. Popple, testified that

he had never used the material being produced at the Property to fill other mining

pits in other areas of the state. (S.R.R. at 34b, 36b-37b.)

During the ZHB’s hearings, some of Appellants’ witnesses testified that

the product being produced and tested under the Demonstration Permit was intended

to be used as a material that might prove to be appropriate for use in mine

reclamation. (S.R.R. at 16b, 23b, 36b.) However, they conceded that the material

being produced has never been used for mine reclamation in the Commonwealth,

(S.R.R. at 34b, 36b-37b), and the record evidence indicates that it is being deposited

into a pit that has no reclamation obligations. (R.R. at 190a.) Finally, we note that

the PA DEP representative stated that once the project is complete, a report will be

prepared and submitted to PA DEP analyzing the effectiveness of the material “for

reclamation and the environmental impacts of its use.” (R.R. at 77a.) At the time

this case came before the ZHB, such a report had not been prepared. Therefore, at

the outset of the project, Appellants did not know whether the material they were

depositing in the quarry hole on the Property was suitable for use in mine

reclamation.

Based on this evidence, we find that the ZHB’s determination that

Appellants’ activity on the Property is more appropriately described as landfilling

30

and manufacturing than as reclamation is supported by substantial evidence.18 As

noted previously, “a ZHB’s interpretation of its own zoning ordinance is entitled to

great weight and deference.” Hafner, 974 A.2d at 1210. We “may not substitute

[our] interpretation of the evidence for that of the ZHB.” Tidd v. Lower Saucony

Township Zoning Hearing Board, 118 A.3d 1, 13 (Pa. Cmwlth. 2015), particularly

in a case such as this one, where the ZHB held hearings and considered extensive

evidence over a period of 17 days. Moreover, we must view the evidence presented

in the light most favorable to the party that prevailed before the fact finder, including

by giving that party the benefit of all reasonable inferences arising therefrom. Id.

B. Whether the 2002 Zoning Ordinance Was Preempted

Appellants assert that the ZHB erred when it found that the Noncoal

Act preempts the Township’s 2002 Zoning Ordinance because the 2002 Zoning

Ordinance regulates the activity of “surface mining.” (Appellants’ Br. at 9.)

We begin with a review of the relevant principles of law. “[T]he mere

fact that the General Assembly has enacted legislation in a field does not lead to the

presumption that the state has precluded all local enactments in the field; rather, the

General Assembly must clearly evidence its intent to preempt.” Hoffman Mining

Company, Inc. v. Zoning Hearing Board of Adams Township, Cambria County, 32

A.3d 587, 593 (Pa. 2011). There are three types of preemption: (1) express,

(2) conflict, and (3) field preemption. Id. at 593-94. Pennsylvania courts disfavor

preemption except where “the Commonwealth has explicitly claimed the authority

itself, or unless there is such actual, material conflict between state and local powers

that only by striking down the local power can the power of the wider constituency

be protected.” United Tavern Owners of Philadelphia v. School District of

18

We note that this opinion does not prohibit Appellants from complying with any

remediation efforts directed by PA DEP on the Property.

31

Philadelphia, 272 A.2d 868, 871 (Pa. 1971). Moreover, municipalities may impose

restrictions that are in addition to, and not in conflict with, state regulations.

Hoffman, 32 A.3d at 612.

The ZHB determined that the activities being carried out on the

Property, as identified in the Notice and the evidence presented during the hearings,

are new uses which commenced in June of 2019 and that these uses are not permitted

in an S-1 Conservation Zone. (F.F. No. 15.) It further found that determining the

location of activities that constitute new uses of a property within a township is

within the authority granted to the municipality under the Pennsylvania

Municipalities Planning Code (MPC)19 and that doing so is not preempted by the

Noncoal Act. (F.F. No. 10.) The ZHB stated that “preemption occurs only when

the zoning ordinance attempts to control the operational activity governed by a

statute in the operation of the regulated activity.” Id. The ZHB then stated that the

“[] Township may determine where a regulated activity takes place and this is the

issue which is identified in the Notice of Violation.” Id.

As an initial matter, we note that the Demonstration Permit issued to

Appellants by PA DEP states:

10. Nothing in this permit shall be construed to supersede,

amend or authorize provisions of any valid and applicable

local law, ordinance or regulation, provided that said local

law, ordinance or regulation is not preempted by the

Pennsylvania Solid Waste Management Act, the Act of

July 7, 1980, Act 97, 35 P.S. [§§ 6018.101-108] [] and Act

101, Municipal Waste Planning, Recycling and Waste

Reduction Act, July 28, 1988 (53 P.S. §§ 4000.101[-104]).

19

Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-10202.

32

(S.R.R. at 44b.) Notably, possible preemption by the Noncoal Act is not

mentioned.20

The MPC provides that “[z]oning ordinances, except to the extent that

those regulations of mineral extraction by local ordinances and enactments have

heretofore been superseded and preempted by the Act of May 31, 1945 (P.L. 1198,

No. 418), known as the [Noncoal Act] . . . may permit, prohibit, regulate and

determine . . . uses of land. . . .” See Section 603(b)(1) of the MPC, 53 P.S.

§ 10603(b)(1).

In Warner Company v. Zoning Hearing Board of Tredyffrin Township,

612 A.2d 578 (Pa. Cmwlth. 1992), this Court considered whether a local zoning

ordinance that allowed quarry operations as a use permitted by special exception was

preempted by the Noncoal Act. First, the Court examined whether Section 16 of the

Noncoal Act preempted the ordinance. That section provides:

5. Local ordinances

Except with respect to ordinances adopted pursuant to the

. . . MPC,” [53 P.S. § 10101-10202] all local ordinances

and enactments purporting to regulate surface mining are

hereby superseded. The Commonwealth by this

enactment hereby preempts the regulation of surface

mining as herein defined.

52 P.S. § 3316. In Warner, this Court held that the word “supersede” refers to the

displacement of something that already exists. Warner, 612 A.2d at 581. Therefore,

we found that the Act did not “supersede” the ordinance because the Act predated

the ordinance. With respect to preemption, the issue was whether the ordinance

provisions were intended to regulate land use or whether they regulated “surface

20

In addition, the cover letter conveying the permit to Appellants stated: “[p]lease note that

the issuance of this permit does not eliminate the need to comply with all other applicable federal,

state, or local requirements at the permitted site.” (S.R.R. at 40b.)

33

mining operations.”21 In Warner, this Court upheld the zoning ordinance’s setback

requirements and the designation of uses permitted by special exceptions because

those were traditional land use regulations, rather than attempts to regulate “surface

mining operations.” Id. at 617, 624.

In Hoffman, 32 A.3d at 591, our Supreme Court stated that “the General

Assembly must clearly evidence its intent to preempt.” Id. It also noted that

“[w]here an ordinance conflicts with a statute, the will of the municipality as

expressed through an ordinance will be respected unless the conflict between the

statute and the ordinance is irreconcilable.” Id. at 594. It further stated that “[w]e

have also observed that this Court has ‘traditionally given local zoning power great

play[, and has] been reluctant to strike down a local ordinance in cases where a state

statute does not directly and inherently conflict with zoning power.’” Id. (quoting

City Council of the City of Bethlehem v. Marcincin, 515 A.2d 1320, 1323, 1326 (Pa.

1986)).

Finally, in Huckleberry Associates, Inc. v. South Whitehall Township

Zoning Hearing Board, 120 A.3d 1110 (Pa. Cmwlth. 2015), a property owner

appealed from a trial court order affirming the zoning hearing board which

determined that landowner’s operation of a solid waste recycling facility violated

the Township’s zoning ordinance. The landowner had operated a noncoal surface

mine and quarry on the property from the 1950s until 1996, but discontinued mining

and quarry operations in 2000. Id. at 1112. In 2012 and 2013, PA DEP issued two

21

The Noncoal Act defines “Surface mining” as “[t]he extraction of minerals from the

earth, from waste or stockpiles or from pits . . . by removing the strata or material that overlies . .

. or other exposing and retrieving them from the surface, including, but not limited to, . . . quarrying

and leaching and all surface activity connected with surface or underground mining, including, but

not limited to, exploration, site preparation, entry, tunnel, drift, slope, shaft and borehill drilling

and construction and activities related thereto; . . . .” Section 3303 of the Noncoal Act, 52 P.S.

§§ 3303.

34

biosoil permits to the landowner which allowed it to build and operate a composting

and biosoil-production facility on the property. The permit limited the materials that

could be used in the production process and also stated that the resulting post-

production materials could only be used for certain purposes. Id. The landowner

paved over a substantial amount of land without applying for a special exception or

obtaining a zoning permit to do so. The landowner also 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, which is a non-permitted use in the district in which the

property was located. Id. The township cited Huckleberry Associates for violations

of the zoning ordinance.

In support of its argument that the ordinance was preempted by both

the Noncoal Act and the Solid Waste Management Act (SWMA), the landowner

argued that by issuing the Biosoil Permits, PA DEP had determined that the solid

waste recycling operation derives from its prior surface mining and quarry activities.

Id. at 1113.22 The zoning hearing board nevertheless denied the landowner’s appeal.

The landowner appealed the zoning hearing board’s denial to the trial court which

affirmed the zoning hearing board. On appeal to this Court, the property owner again

argued that its solid waste recycling operation derived from its prior surface mining

and quarrying activities and that the process by which biosoils are produced is

preempted by the Noncoal Act.

This Court disagreed for the following reasons. First, because the

ordinance was enacted pursuant to the MPC, it is not superseded by the express

22

Appellants also argued that their use of the Property under the Demonstration Permit

was a natural expansion of the Property’s prior, nonconforming use as a surface mine and quarry.

(Appellants’ Br. at 35.)

35

language of the Noncoal Act. Id. at 1114. Second, this Court determined that local

land use ordinances may govern where a regulated activity takes place but not govern

how such activity is conducted. See Geryville Materials, Inc. v. Planning

Commission of Lower Milford Township, 74 A.3d 322, 325 (Pa. Cmwlth. 2013)

(“[C]ase law differentiates local ordinances that directly regulate the operation of

mines and those that regulate where the regulated activity can take place. Only the

former are preempted . . . .”). This Court found that the ordinance at issue in that

case regulated where a noncoal surface mine could be located within the township,

but it did not regulate the manner in which such a facility was operated.

Huckleberry, 120 A.3d at 1113-14. In addition, the Biosoil Permits received by the

landowner expressly conditioned PA DEP’s approval of the solid waste recycling

facility on the landowner’s compliance with applicable zoning regulations, as it did

here. Id.

Because in the instant case, the Zoning Ordinance does not purport to

regulate the activity of surface mining, but rather specifies where within the

Township a surface mine can be located, we find no error on the part of the ZHB in

holding that the Township Zoning Ordinance was not preempted by the Noncoal

Act.

C. Validity of the Notice & Mootness

1. Validity of a Notice based on

a Repealed Ordinance

Appellants assert, without citing legal authority, that the Township

cannot issue a notice of violation citing sections of a 2002 zoning ordinance when a

new ordinance has been passed prior to the date of issuance of the notice. They

acknowledge that the Township had issued at least one Notice regarding the same

violations while the 2002 Zoning Ordinance was still in effect. But they argue that

36

the Township’s November 30, 2020 Notice was invalid because it was issued 28

days after the Township adopted a new comprehensive zoning ordinance,23 and that

the Notice cited the 2002 Ordinance rather than the new 2020 Zoning Ordinance in

describing the violation. (Appellants’ Br. at 28.) According to Appellants, “[i]f the

Township had issued the November 2020 Enforcement Notice before the Board of

Supervisors repealed the 2002 Zoning Ordinance such enforcement action could

have continued.” Id. at 30.

Appellee Fell Township24 disagrees and asserts that in In re Board of

Commissioners of Cheltenham Township, 211 A.3d 845, 855 (Pa. 2019), the

Supreme Court held that pursuant to Section 508(4)(i) of the MPC, 53 P.S.

§ 10508(4)(i), when an application is filed for approval of a plat, the zoning

ordinance in effect at the time of the application is controlling, even if such zoning

ordinance has later been repealed. In addition, the Township argues, the Cheltenham

Court found that consideration of a subsequent revised application is still to be

reviewed under the previous ordinance rather than the new one. (Appellee Fell

Township’s Br. at 17.) Thus, Fell Township argues that because the original Notice

was issued to Appellants while the 2002 Zoning Ordinance was still in place, the

ZHB did not abuse its discretion or commit an error of law by finding that the 2002

Zoning Ordinance controls in the present situation. Id. at 18.

In its decision, the ZHB determined that

8. The November 2020 Notice of Violation must be

interpreted in accordance with the zoning ordinance in

effect at the date of the violation: Whitpain Associates v.

Whitpain Township, 439 A.2d 1334 (Pa. Cmwlth. 1992).

In Re Commissioners of Cheltenham Township, 211 A.3d

23

The new Ordinance went into effect as of November 2, 2020. (R.R. at 69a.)

24

Appellees in this case are the ZHB and Fell Township. The Township intervened in the

case when it was before the trial court. (R.R. at 229a.) The Township filed a separate brief.

37

at 855. The 2002 [] Zoning [O]rdinance was in effect at

the time of the activity which is the gravamen of the

[N]otice of violation.

(COL No. 10.)

We affirm the decision of the ZHB in finding no error in the issuance

of the final Notice under the Township’s 2002 Zoning Ordinance. We note that the

Township’s November 30, 2020 Notice explained that it was issued to replace the

Township’s prior Notice which had been issued on January 16, 2020, while the 2002

Zoning Ordinance was still in effect. (R.R. at 199a.) The November 30, 2020 Notice

explained that the earlier Notice had been withdrawn because the zoning officer who

issued the Notice was no longer employed by the Township, and stated that “this

enforcement [N]otice is being issued in place of the prior one.” Id. We also note

that, as the ZHB’s decision pointed out, all of the activities discussed in the Notice

occurred while the 2002 Zoning Ordinance was in effect.25

We further note that the rules of statutory construction apply to the

interpretation of local ordinances as well as to the interpretation of statutes. See,

e.g., Geerling Florist, Inc. v. Board of Supervisors of Warrington Township, 226

A.3d 670, 676 (Pa. Cmwlth. 2020) (“Although the Statutory Construction Act of

1972, 1 Pa.C.S. §§ 1501-1991, is not expressly applicable to the construction of local

ordinances, the rules of statutory construction are applicable to statutes and

ordinances alike.”). Section 1976(a) of the Statutory Construction Act sets forth the

following rule of statutory construction:

25

Appellants’ activities cited as violations in the Notice began after PA DEP issued a

Demonstration Permit to Appellants on September 21, 2017 which was good for a one-year term

after the commencement of processing and placement activities. (R.R. at 52a, 86a.) The activities

set forth in the Notice began on or about June 12, 2019, and continued for a period of

approximately one year. (F.F. No. 18.) Thus the 2002 Zoning Ordinance cited in the Notice

concerned activities that had concluded before the new 2020 Zoning Ordinance went into effect

on November 2, 2020.

38

The repeal of any civil provisions of a statute shall not

affect or impair any act done, or right existing and accrued,

or affect any civil action pending to enforce any right

under the authority of the statute repealed. Such action

may be proceeded with and concluded under the statutes

in existence when such action was instituted

notwithstanding the repeal of such statutes, or such

actions may be proceeded with and concluded under the

provisions of the new statute, if any, enacted.

1 Pa.C.S. § 1976(a) (emphasis added). See also Catholic Cemeteries Association of

Diocese of Pittsburgh, Inc. v. Township of Pine, Allegheny County, 794 A.2d 435,

438 (Pa. Cmwlth. 2002). Because the 2002 Zoning Ordinance was in effect at the

time the action was instituted, i.e., when the original Notice was issued, we affirm

the findings of the ZHB on this issue.

2. Mootness

Appellants argue that the ZHB erred when it decided the case because

the demonstration project had concluded by the time of the ZHB decision and

therefore the issues raised before the ZHB were moot. (Appellants’ Br. at 29.) In

its decision, the ZHB stated “[i]f the circumstances of a case are capable of repetition

but could easily evade review, a court will proceed to address the merits of the claim

raised.” (R.R. at 13a.) It then noted that Appellants had not exhausted the permitted

capacity of 90,000 cubic yards of C&D fines at this site under the Demonstration

Permit and that they had been able to obtain extensions from PA DEP to extend the

time limits for depositing and mixing the fines with cement and water at the Property

previously under the approved permits. In addition, the ZHB considered that

Appellants were not precluded from applying for other permits to carry out the

activities determined to violate the Zoning Ordinance at the 700-acre site. Id. at 13a-

14a. Appellants assert in response that if they were to resume their activities, a

39

determination that those activities violated a now-repealed 2002 Zoning Ordinance

would be meaningless. (Appellants’ Br. at 29.)

The ZHB asserts that an actual case or controversy was present when

the ZHB issued its decision, and is currently present, because Appellants deposited

a product containing municipal waste into a quarry pit on their property in an S-1

Conservation Zone, without authorization and in violation of the 2002 Zoning

Ordinance. It contends that the fact that the manufactured product was never

removed from the quarry pit makes this a continuing violation of the Zoning

Ordinance. (ZHB Appellee’s Br. at 26.) Thus, while the activity may have stopped,

“the harm is still in existence. There is a manufactured product which to this day

exists on the [P]roperty.” Id. at 27. The ZHB further states that the designation of

the zone as an S-1 Conservation Zone continues to today, and thus a controversy still

exists. Id.

As the ZHB recognized in its decision, the mootness doctrine is well

settled:

[T]he cases presenting mootness problems involve litigants

who clearly had standing to sue at the outset of the

litigation. The problems arise from events occurring after

the lawsuit has gotten under way—changes in the facts or

in the law—which allegedly deprive the litigant of the

necessary stake in the outcome. The mootness doctrine

requires that an actual case or controversy must be extant

at all stages of review, not merely at the time the complaint

is filed.

(COL No. 12.) In Slice of Life, our Supreme Court held that in a zoning case, “the

cessation of the complained of activity . . . which violated a city ordinance, did not

render the action challenging the ordinance moot.” Slice of Life, LLC v. Hamilton

Township Zoning Hearing Board, 207 A.3d 886, 896-97 (Pa. 2019) (citations

omitted). There, our Supreme Court found that although the alleged violator of the

40

ordinance was no longer operating the business that was found to violate the

ordinance, it remained a business incorporated in Pennsylvania and could open the

same type of establishment in the future. Id. The Court further determined that

given the significant amount of time that typically passes between a decision by a

zoning hearing board and an appeal of a zoning hearing board’s decision, such cases

are capable of repetition but could easily evade review. Id.

We conclude that on this issue, the ZHB did not commit an error of law

and that its conclusion of law on this issue is supported by substantial evidence. We

agree that this case is not moot because the presence of a sanitary landfill in an S-1

Conservation Zone continues to violate the Township’s Zoning Ordinance so that an

actual case or controversy exists. Even if that were not the case, we would find that

the exception to the mootness doctrine for situations capable of repetition yet

evading review applies here as well because as noted by the ZHB, Appellants could

resume their activities either by requesting an extension of their existing permit or

applying for a new permit at this site. For these reasons, we find that the mootness

doctrine is inapplicable in this case.

D. Variance by Estoppel, Laches, and the Natural

Expansion of a Nonconforming Use

1. Variance by Estoppel and Laches

Appellants argue that they have not violated the 2002 Zoning

Ordinance because they obtained a variance by estoppel as a result of the

municipality’s failure to enforce its Zoning Ordinance. They base this argument on

the fact that the Township did not object to the activities Appellants have been

engaged in on the Property, despite being notified of Appellants’ application for a

Demonstration Permit in 2016 by PA DEP. In addition, they argue laches should

bar the Township from enforcing its land use regulations because the Township did

not issue its Notice until November 30, 2020. (Appellants’ Br. at 34.)

41

The doctrine of variance by estoppel applies “when a property owner .

. . has maintained a use of property contrary to the zoning laws for a long period of

time. As the term suggests, the theory provides protection for uses that are contrary

to the zoning law, but in which the municipality has acquiesced.” Springfield

Township v. Kim, 792 A.2d 717, 721 (Pa. Cmwlth. 2002). A variance by estoppel is

an unusual remedy and is granted only in the most extraordinary of circumstances.

Skarvelis v. Zoning Hearing Board of Dormont, 679 A.2d 278, 281 (Pa. Cmwlth.

1996). Mere inaction in enforcing a zoning ordinance, without more, cannot support

the granting of a variance. Springfield Township, 792 A.2d at 721 n.4. Likewise,

mere knowledge of a violation of a zoning ordinance does not, in and of itself, prove

that a municipality actively acquiesced in the use of the property.26 Anderson v.

Zoning Hearing Board of Hampton Township, 690 A.2d 1328 (Pa. Cmwlth. 1997).

To establish a variance by estoppel, the party seeking it must prove all

the essential elements by clear, precise and unequivocal evidence. Springfield

Township, 792 A.2d at 721. In this case, Appellants have offered no evidence to

prove the required elements. In particular, they have not demonstrated that the

Township either failed to enforce the ordinance for a long period of time or that it

26

To establish a prima facie variance by estoppel, the property owner must prove:

(1) a municipality’s failure to enforce a zoning ordinance for a long

period of time;

(2) that the municipality knew or should have known of the illegal

use and actively acquiesced in the illegal use;

(3) reliance by the owner on the appearance of regularity that the

municipality’s inaction has created;

(4) hardship created by cessation of the illegal use; and

(5) that the variance will not be a threat to the health, safety, or

morals of the community.

Springfield Township, 792 A.2d at 721 n.4.

42

actively acquiesced in the illegal use. The facts of record indicate that Appellants

began to use the Property in a way that violated the 2002 Zoning Ordinance in June

of 2019, (F.F. No. 18), and that the Township issued a Notice to Appellants on

January 16, 2020. (R.R. at 199a.) In addition, “in those cases where we have granted

a variance by estoppel, the municipalities have done more than passively stand by;

they have committed some affirmative act, such as granting a building permit, which

would reasonably lead a property owner to conclude that the proposed use was

sanctioned under the law.” Springfield Township, 792 A.2d at 722 (quoting

Skarvelis, 679 A.2d at 281). Because Appellants have not shown that the Township

actively acquiesced in Appellants’ violation of the Zoning Ordinance, we find that

their argument regarding the variance by estoppel issue is without merit.

For similar reasons, we find that Appellants have failed to prove that

the Township has been guilty of laches. “For a party to prevail on the defense of

laches, it must prove both inordinate delay and prejudice from that delay.”

Springfield Township, 792 A.2d at 721 (quoting Richland Township v. Prodex, Inc.,

634 A.2d 756, 761 (Pa. Cmwlth. 1993)). Here, Appellants failed to prove that there

was an inordinate delay on the party of the Township.27

2. Natural Expansion of a Nonconforming Use

Appellants assert that the use now being made of the Property, which

consists of taking in C&D fines, mixing them with concrete, and depositing the

mixture in a pit on the Property, constitutes the natural expansion of a preexisting

nonconforming use, which they claim their earlier mining activities to be.

Appellants contend that because the Property had been used for mining activities at

27

Indeed, to the extent that the Township did not immediately send a Notice upon learning

of Appellants’ use of the Property, such delay may have resulted in part from Appellants’ own

actions in applying for a use variance from the ZHB for their use of the Property and later

withdrawing their application. (R.R. at 21a-23a.)

43

the time of the enactment of the 2002 Zoning Ordinance, their current production of

reclamation materials is allowable. (Appellants’ Br. at 34-35.) The ZHB rejected

this argument, stating that “the creating of the lightweight concrete product produced

at the site and the use of the Pre-Act pit for testing of this product for this use is new

to this site” and, therefore, was not a nonconforming use at this site. (COL No. 19.)

It also specifically concluded that “the previous existence of the quarry did not

incorporate the identified manufacturing use” and that “the claim of a pre-existing

nonconforming use was not established by the Appellants . . . .” (COL No. 20.)

We agree. Appellants’ argument relies on the premise that the use

being made of the Property under the PA DEP’s Demonstration Permit constitutes

mine reclamation. It also overlooks the fact that Appellants carried out their mining

activities pursuant to a special use exception issued by the Township. However, the

special exception granted to Appellants by the Township only allowed for the use of

the site for quarry and surface mining. The activities allowed under the exception

did not include having C&D fines delivered to the site by waste transporting and

processing facilities, which then paid Appellants a fee to deposit the C&D fines at

the Property based upon the tonnage deposited, as the ZHB found was occurring

here pursuant to the Demonstration Permit. (F.F. No. 15; COL at 9, 10.) The ZHB

correctly found that Appellants’ claim that their use of the Property constituted a

preexisting nonconforming use was not established by Appellants, who had the

burden of proof on this issue. (COL No. 19.)

Therefore, we find that substantial evidence supports the ZHB’s

determination that the activities engaged in by Appellants constitute the use of the

Property for manufacturing and testing a new product and the use of the Property as

a solid waste disposal area (sanitary landfill). We affirm the decision of the ZHB

and the trial court with respect to this issue.

44

E. Ethics Issues

1. Recusal

Appellants argue that “there was the appearance of bias by the Board”

and that [t]he Board did not recuse itself when requested.” (Appellants’ Br. at 35.)

However, in their brief, Appellants do not provide any facts about this supposed

appearance of bias or any conflict of interest on the part of the ZHB.28 “As a general

rule, a municipal officer should disqualify himself from any proceeding in which he

has an immediate or direct pecuniary interest.” Amerikohl Mining Inc. v. Zoning

Hearing Board of Wharton Township, 597 A.2d 219, 222 (Pa. Cmwlth. 1991).

However, “[b]efore it can be said that a judge [or a ZHB member] should have

recused himself, the record must demonstrate bias, prejudice, capricious disbelief or

prejudgment . . . . If a judge [or ZHB member] thinks he is capable of hearing a case

fairly, his decision not to withdraw will ordinarily be upheld on appeal.” Caln

Nether Company v. Board of Supervisors of Thornbury Township, 840 A.2d 484,

496 (Pa. Cmwlth. 2004) (quoting Appeal of Miller & Son Paving, Inc., 636 A.2d

274, 278 (Pa. Cmwlth. 1993)). Because Appellants have failed to offer any evidence

or specific allegation of bias, prejudice, capricious belief or prejudgment, we

determine that the ZHB did not abuse its discretion or commit an error of law in its

determination that recusal was not warranted.

2. Hostile Environment

Appellants assert that the ZHB violated its obligation to provide a

neutral site for their administrative hearings. Appellants claim that the ZHB created

a hostile environment for Appellants’ witnesses at a hearing because at a table where

cups for water were kept, a picture of Mr. Popple’s adult daughter, who managed

28

Appellants specifically state that they do not seek a remand to a neutral hearing officer,

but rather seek to have the Township reimburse Appellants for all expenses they have incurred in

this matter. (Appellants’ Br. at 35-36.)

45

Appellants’ project and had testified at previous hearings but was absent from this

hearing, was taped onto three containers over pictures of missing children.

(Appellants’ Br. at 40-41.) Once again, Appellants cite no legal authority for their

claim and request no specific relief.

In response, the Township contends that there is no evidence in the

record to show that any member of the ZHB actually saw the photograph and that it

was only brought to the Board Members’ attention by Appellants’ counsel.

(Township Appellee’s Br. at 24.) They further contend that the photograph could

have been placed on the table by a member of the public. Id. We find that by

providing no proof that any member of the ZHB was involved in the incident raised

by Appellants, they have failed to prove their allegation that the ZHB created a

hostile environment for Appellants during its proceedings.

3. Ex Parte Communication

Appellants claim that the ZHB committed a due process violation when

it held an ex parte hearing on December 8, 2018, to continue a previously scheduled

hearing regarding Appellants’ application for a use variance for the Property for

which Appellants had received their Demonstration Permit. The Township notified

Appellants of this hearing. (R.R. at 21a-22a.) However, Appellants did not attend

the hearing, but instead sent a letter to the ZHB informing it that they would not be

attending the hearing because they had decided to withdraw their application for the

use variance. Id. at 23a-24a. At the hearing, the Chairman of the ZHB announced

that Appellants’ application had been withdrawn and that the ZHB would not need

to continue the hearing to render a decision on Appellants’ application. However,

before formally closing the proceedings, the Chairman of the ZHB allowed

individuals who were present at the hearing an opportunity to provide input if they

wished to do so. Id. at 24a. At the close of the hearing, the Chairman announced

that all of the testimony offered at that hearing would be entered into the record. Id.

46

at 57a. Because Appellants were invited to the hearing and were properly notified

of the date and time of the proceeding, we find that Appellants’ allegation that the

hearing constituted a due process violation has no merit.

IV. Conclusion

For the reasons discussed above, we affirm the February 8, 2024 trial

court order.

________________________________

PATRICIA A. McCULLOUGH, Judge

47

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clinton Properties, Inc. and :

Pioneer Aggregates, Inc., :

Appellants :

:

v. : No. 283 C.D. 2024

:

Fell Township Zoning Hearing Board :

and Fell Township :

ORDER

AND NOW, this 3rd day of February, 2026, the February 8, 2024 Order

of the Court of Common Pleas of Lackawanna County is AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clinton Properties, Inc. and Pioneer

:

Aggregates, Inc., :

Appellants :

:

v. : No. 283 C.D. 2024

: Argued: April 8, 2025

Fell Township Zoning Hearing Board :

and Fell Township :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE STACY WALLACE, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY SENIOR JUDGE LEAVITT FILED: February 3, 2026

The Pennsylvania Department of Environmental Protection (DEP) has

granted a permit to Clinton Properties, Inc. (Landowner) and its lessee, Pioneer

Aggregates, Inc. (Pioneer), to test a process for reclaiming an existing mining pit.

Fell Township (Township) issued notice of violation of the Township Zoning

Ordinance,1 asserting that the permitted demonstration project constituted a sanitary

landfill or a manufacturing facility, which uses are not authorized in the conservation

district, where the former open pit mining operation is located. Because the

permitted demonstration project constitutes neither a sanitary landfill nor a

manufacturing facility, the Township did not prove that Landowner’s reclamation

project violated the Zoning Ordinance. With respect, I dissent from the majority’s

decision to hold Landowner in violation of the Zoning Ordinance.

1

ZONING ORDINANCE, TOWNSHIP OF FELL, LACKAWANNA COUNTY, PENNSYLVANIA, January 2002

(Zoning Ordinance).

The Township Zoning Hearing Board (Zoning Board) found that

approximately 2.5 acres of Landowner’s 700-acre property is being used as a

sanitary landfill or as a manufacturing facility, which use is not allowed in the S-1

Conservation District (Conservation District). I address those conclusions seriately.

The Zoning Ordinance defines a sanitary landfill as “any facility

devoted to the storage and/or disposal of solid wastes pursuant to the regulations of

the Pennsylvania Department of Environmental Protection [(DEP)] governing

sanitary land fills.” ZONING ORDINANCE, §11.188; Original Record (O.R.), Item No.

3, at 11 (emphasis added). Instead of using the Zoning Ordinance definition of

“sanitary landfill,” the Zoning Board used a dictionary definition. This was error.

The Zoning Board noted, correctly, that the DEP regulations do not

specifically define “sanitary landfill.” However, DEP regulations define other types

of “landfills” as follows:

Construction/demolition waste landfill--A facility using land

exclusively for the disposal of construction/demolition waste.

The term includes land affected during the lifetime of the

operations, including, but not limited to, areas where disposal

activities actually occur, support facilities, borrow areas, offices,

equipment sheds, air and water pollution control and treatment

systems, access roads, associated onsite or contiguous collection,

transportation and storage facilities, closure and postclosure care

and maintenance activities and other activities in which the

natural land surface has been disturbed as a result of or

incidental to the operation of the facility.

Municipal waste landfill--A facility using land for disposing of

municipal waste. The facility includes land affected during the

lifetime of operations including, but not limited to, areas where

disposal or processing activities actually occur, support

facilities, borrow areas, offices, equipment sheds, air and water

pollution control and treatment systems, access roads, associated

onsite and contiguous collection, transportation and storage

facilities, closure and postclosure care and maintenance activities

MHL-2

and other activities in which the natural land surface has been

disturbed as a result of or incidental to operation of the facility.

The term does not include a construction/demolition waste

landfill or a facility for the land application of sewage sludge.

25 Pa. Code §271.1 (emphasis added). In short, the DEP regulations specify that a

“landfill” is an activity that disturbs the “natural land surface.” Id. That is not

happening here because there is nothing “natural” about an abandoned mining pit.

Pioneer’s demonstration project is being conducted “within the Clinton

Strip of the Simpson Quarry operation.” Reproduced Record at 86a (R.R. __). The

project consists of mixing construction and demolition (C&D) fines and Portland

cement, known as “Re-Crete,” in an abandoned mining pit, which was left after the

minerals were removed. Id. The project will not disturb the “natural land surface.”

25 Pa. Code §271.1 (emphasis added). Rather, the project will restore the mined pit

back to its “natural land surface” by reclaiming the mining pit. Because the

demonstration project is not disturbing the “natural land surface,” it is not

“landfilling,” sanitary or otherwise.

The DEP permit of September 21, 2017, was issued by DEP’s Bureau

of Land Recycling and Waste Management. R.R. 88a-89a. This supports

Landowner and Pioneer’s position that the permitted activity constitutes land

reclamation, i.e., “land recycling.” Lest there be any doubt, DEP’s Regional

Director, Michael Bedrin, stated in his letter to the Township that the permitted

activity was consonant with the Zoning Ordinance “because the project involves the

reclamation of an existing mining pit.” R.R. 75a (emphasis added). The letter

expressly stated that “DEP does not consider this project to be landfilling[]” because

it was approved “to demonstrate that [C&D] fines can be processed with Portland

cement through a pugmill and be utilized to reclaim mining pits to levels at which

the mined areas can be redeveloped.” R.R. 76a (emphasis added). This is consistent

MHL-3

with what was stated in the DEP permit, which authorizes a maximum deposit of

90,000 cubic yards of C&D fines and will expire in one year. The experimental

nature of the project does not undermine the position of DEP and Landowner that

the activity is the reclamation phase of a lawful non-conforming, mining use. Even

if the reclamation is not permitted to continue beyond the first year, a portion of the

Simpson Quarry will have been reclaimed.

The Zoning Board focused on the testimony of Roger Bellas, a DEP

employee, who stated that the DEP permit for the demonstration project was

governed by a Department regulation, at 25 Pa. Code §§271.501-.506, which

“applies to municipal waste processing or disposal facilities that are based on a new

or unique technology for processing or disposing of municipal waste.” Zoning

Board Decision, Finding of Fact No. 7; R.R. 4a. The majority contends that Bellas’

testimony supports the Zoning Board’s conclusion that Landowner’s use of the

property constitutes a “sanitary landfill.” However, Bellas also testified that “[t]he

material that comes to the facility and is weighed through [Pioneer’s] scales prior to

processing is a municipal waste.” O.R., Item No. 8, Notes of Testimony (N.T.),

8/2/2021, at 10-11 (emphasis added). He then clarified that “in the opinion of DEP,”

“the demonstration permit[ is] not a landfill permit.” Id. at 18. He explained his

view, in response to a question about “landfill capping,” as follows:

[Counsel:] And what’s your understanding as to how

[Landowner and Pioneer] were going to cap the landfill upon

completion of the demonstration activities?

[Bellas:] Well, again, I believe that it was a contingency plan that,

depending on the results of the demonstration, there may be a

need to cap the site, the demonstration site. And the materials

that were proposed to cap the site were similar materials that

would be used to cap a landfill.

....

MHL-4

[Counsel:] Mr. Bellas, . . . there’s an under drain, there’s a liner,

the product’s created on site, it’s filled. There’s a drainage

system around it to catch the leachate, a sump is in pl[a]ce, and

then there would be two feet of soil and then it would be planted

and seeded. Is that your understanding?

[Bellas:] I believe so, yes.

....

[Bellas:] Again, without going back and reading everything - - I

do know that there were some discussions with site personnel as

to when that could occur. I think that at the onset of the project

there was some optimism, based on the bench scale testing that

was done, that the project could be successful. Depending on the

project’s success, there was a thought that a continuation of the

project could occur there.

So I think it was discussed that maybe a cap wouldn’t be

necessary. Depending on the results of the demonstration, our

evaluation of it, and whether or not it could be considered for

continuation, the capping may not have to happen and how

quickly that could happen. [] [M]y recollection is that there was

never a definitive timeline for capping. There was always the

idea that possibly it wouldn’t have to be capped if the

demonstration showed that it was a success, a completion of the

mine reclamation could happen, because there wasn’t a full

completion of -- the 90,000 cubic yards, the one year time frame

may not have necessarily completed the reclamation to the point

at which they would have wanted it to be completed. So that if

the demonstration was successful and we could develop some

type of further permitting maybe they wouldn’t have to cap it.

They’d just continue to place the mixture material to complete

the reclamation.

Id. at 27-29 (emphasis added). Notably, Bellas testified that he helped Bedrin, the

Regional Director, write the letter to the Township, and he agreed with Bedrin’s

statement that the demonstration project was not landfilling. Id. at 61.

In sum, Bellas testified that the demonstration project at the Simpson

Quarry was a mine reclamation project that involved waste processing; he did not

MHL-5

testify that it constitutes a sanitary landfill.2 Critically, Bellas did not consider the

mixture material placed in the mine pit, “Re-Crete,” to constitute municipal waste.

See O.R., Item No. 8, N.T., 8/2/2021, at 10-11 (testifying that the material that comes

to the facility and is weighed through Pioneer’s scales prior to processing is a

municipal waste) (emphasis added). The Zoning Board credited Bellas’ testimony.

At the expiration of the demonstration period, Pioneer will submit a

report that would include a “chemical analysis of the C&D fines received at the site,

chemical analysis of the material placed in the pit, [and] results of the testing

conducted on leachate and stormwater sampling[.]” R.R. 77a. This report will

determine whether this form of reclamation can continue.

The Regional Director’s letter was admitted into evidence, but the

Zoning Board ignored its existence. It made no effort to rebut the conclusion of the

Regional Director that the permitted activity involved the recovery of land, which,

ironically, advances the purpose of a conservation district.

Likewise, the Zoning Board erred in finding that the demonstration

project constituted a manufacturing facility. The Township did not offer the entire

Zoning Ordinance into evidence, and it is not available online. Rather, the Township

placed only excerpts of the Zoning Ordinance into the record. See O.R., Item No. 3

(Exhibit T-14). Somewhat suspiciously, Fell Township did not include Section

5.550, which appears to provide for substantive regulation on a manufacturing use

and may have assisted in an explication of what the Zoning Ordinance meant by

2

The majority cites Supplemental Reproduced Record at 3b-5b and the Reproduced Record at 41a

for its position that Bellas testified that the permitted project constituted municipal waste

processing. Clinton Properties, Inc. and Pioneer Aggregates, Inc. v. Fell Township Zoning

Hearing Board and Fell Township (Pa. Cmwlth., No. 283 C.D. 2024, filed February 3, 2026), slip

op. at 27. However, it appears that these pages do not include Bellas’ testimony. Reproduced

Record at 41a reflects Gary Wilding’s testimony, and Supplemental Reproduced Record at 3b-5b

reflects Mark Popple’s testimony.

MHL-6

“manufacturing.” See ZONING ORDINANCE, Table 1; O.R., Item No. 3, at 4. Instead,

the record includes only Section 2.100 and Table 1 of the Zoning Ordinance, which

limit “manufacturing” to the I-1 Industrial District but offer no clue on what is meant

by “manufacturing.” ZONING ORDINANCE, §2.100; O.R., Item No. 3, at 1.

Because “manufacturing” is not defined in the Zoning Ordinance, the

Zoning Board relied on the Merriam-Webster Dictionary and the Northern American

Industrial Classification System (NAICS). The Merriam-Webster Dictionary

defines “manufacture” as “the act or process of producing something.” Zoning

Board Decision, Conclusion of Law No. 15; R.R. 14a. The dictionary provides an

example of this, namely, “[t]he manufacture of blood goes on constantly in the

human body.” MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster

.com/dictionary/manufacture (last visited February 2, 2026) (emphasis in original).

The human body’s “manufacturing” of blood cannot be an activity intended by the

Zoning Ordinance to take place only in the I-1 Industrial District. The NAICS

defines manufacturing use as “establishments engaged in the mechanical, physical,

or chemical transformation of materials, substances, or components into new

products.”3 Zoning Board Decision, Conclusion of Law No. 15; R.R. 14a.

Landowner is not engaged in the creation of “new products.”

The Zoning Board erred in using overbroad and extraneous definitions

of “manufacturing” that were not appropriate for this context, which is land use.

3

In any case, NAICS is “the standard used by Federal statistical agencies in classifying business

establishments for the purpose of collecting, analyzing, and publishing statistical data related to

the U.S. business economy.” See UNITED STATES CENSUS BUREAU, North American Industry

Classification System, https://www.census.gov/naics/ (last visited February 2, 2026) (emphasis

added). It is hardly likely that the United States would classify a mine reclamation project as a

manufacturing business.

MHL-7

In Board of Supervisors of Lower Providence Township v. Ford, 283

A.2d 731, 733 (Pa. Cmwlth. 1971), this Court held that the township’s zoning

hearing board abused its discretion in refusing to include trucking as an “industrial

manufacturing pursuit” under the township’s zoning ordinance. In doing so, this

Court stated:

When the term (Industrial Manufacturing Pursuit) defines uses

which are permitted, it is both permissive and restrictive. Without

further limiting definition, the permissive nature of the phrase

must be taken in its “broadest sense.” [] On the other hand, any

restrictive nature ascribed to the phrase must be taken in its

strictest sense. []

Id. (emphasis added) (quotations omitted). Here, the Zoning Board has turned this

principle on its head by choosing the broadest, not the strictest, definition of

“manufacturing.” Because the Zoning Ordinance does not allow “manufacturing”

in the Conservation District, the term must be construed narrowly.

Prior decisions of this Court offer several definitions of manufacturing

in the context of zoning. In Linke v. Hilltown Township Zoning Hearing Board (Pa.

Cmwlth., No. 863 C.D. 2023, filed December 17, 2024) (unreported),4 slip op. at 5

n.6, for example, the township’s zoning ordinance defined “manufacturing” as

“including the production, processing, cleaning, testing, and distribution of

materials, goods, foodstuffs, and products including asphalt and concrete.” In Eby

v. East Earl Township Zoning Hearing Board (Pa. Cmwlth., No. 1618 C.D. 2007,

filed July 16, 2008) (unreported), slip op. at 6 (emphasis in original omitted), the

zoning ordinance defined “manufacturing” as “[t]he processing and/or converting of

raw unfinished or finished materials or products, or of any combination, into an

4

This unreported opinion is cited as persuasive authority pursuant to this Court’s Internal

Operating Procedures. 210 Pa. Code §69.414(a).

MHL-8

article or substance of a different character, or for use for a different purpose[.]” In

Equilibrium Equities, Inc. v. Board of Supervisors of Middlesex Township,

Cumberland County, 696 A.2d 260, 262 (Pa. Cmwlth. 1997), the zoning ordinance

defined “general industrial use” as “manufacturing or storage uses which, because

of their shipping, storage and other requirements, should not be located in close

proximity to residential areas” (emphasis added). Here, the activity in question is

located on 2.5 acres of a 700-acre property.

Because restrictions on land use must be applied strictly and narrowly,

the Zoning Board erred in using the broadest possible definition of manufacturing.

Rather, it is the narrowest definition of “manufacture” that is appropriate, and this

would include the components of “distribution” and “shipping.” See Linke, slip op.

at 5 n.6; Equilibrium Equities, 696 A.2d at 262. Here, the mixing of the C&D fines

will not result in a product that can be distributed but, rather, will be used to return

an open mining pit to usable land.

When interpreting the terms of a local zoning ordinance, “any doubt

must be resolved in favor of the landowner and the least restrictive use of the land.”

Borough of Fleetwood v. Zoning Hearing Board of Borough of Fleetwood, 649 A.2d

651, 657 (Pa. 1994). The Zoning Board ignored the actual language in the Zoning

Ordinance and, instead, used the broadest dictionary definitions to conclude that

Landowner’s permitted activity constituted landfilling and manufacturing. This was

error and an abuse of discretion.

I would reverse the Zoning Board’s decision.

________________________________________________________

MARY HANNAH LEAVITT, President Judge Emerita

MHL-9