The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gravel Hill Enterprises, Inc. :
: No. 2619 C.D. 2015
v. :
: Argued: September 13, 2017
Lower Mount Bethel Township :
Zoning Hearing Board, Lower Mount :
Bethel Township, William S. Buehler, :
Catherine S. Buehler, Gus Tishuk, :
and Arlene Tishuk :
:
Appeal of: William S. Buehler, :
Catherine S. Buehler, Gus Tishuk, :
and Arlene Tishuk :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION BY
JUDGE McCULLOUGH FILED: October 30, 2017
William Buehler, Catherine S. Buehler, Gus Tishuk, and Arlene Tishuk
(Intervenors)1 appeal from the November 20, 2015 order of the Court of Common Pleas
of Northampton County (trial court), which approved and adopted a land use settlement
1
Intervenors are residential property owners who live near the property that is the subject of
this litigation.
agreement between Lower Mount Bethel Township (Township) and Gravel Hill
Enterprises, Inc. (Gravel Hill).
Facts and Procedural History
Gravel Hill purchased land located at 10143 Gravel Hill Road, Bangor,
Lower Mount Bethel Township, Northampton County, Pennsylvania (the Property) at
a Federal Marshal’s sale in 2008 after the previous owner defaulted on a federal loan.
The Property is approximately 126 acres, and approximately 55.5 acres are covered
with piles of stumps and other wood-waste debris, including some materials that would
be considered hazardous waste. On or about September 3, 2014, Gravel Hill filed an
application with the Township Zoning Hearing Board (ZHB), seeking a variance to
permit the operation of a stump shredder and grinder to produce mulch and top soil.
At the time of the application, the Property was subject to a Department of
Environmental Protection (DEP) order issued December 31, 1999, requiring the
Property’s previous owner to, inter alia, cease the transportation, dumping, disposal,
and burning of debris on the Property and remove all debris from the Property at a rate
of 4,000 cubic yards per week. (Reproduced Record (R.R.) at 138a-49a.)
The Property’s previous owner operated a stump grinding business and
had initially received a variance permitting the use of the Property for the same. The
variance was subsequently vacated; however, the previous owner continued to operate
the business for a number of years. During the unauthorized operation, the previous
owner received a substantial amount of material for disposal, but very little material
was processed and manufactured to product. Moreover, a number of fires occurred on
the Property because of the large amount of material stored thereon. The Property is
2
located in the Township’s Agricultural Zoning District, which does not permit the
proposed use.
Over the course of three hearings before the ZHB, Gravel Hill and the
Township presented testimony and other evidence.2 Intervenors and several other
neighboring property owners appeared at the hearings to oppose Gravel Hill’s
application for a variance, citing concerns regarding truck traffic, noise, declining
property values, and other problems that existed under the Property’s previous owner.
The ZHB denied Gravel Hill’s application, reasoning that the proposed use would be
detrimental to the public welfare, have an adverse impact on the essential character of
the neighborhood, and did not constitute the minimum variance that would afford
relief.
On December 15, 2014, Gravel Hill filed an appeal with the trial court
and, on December 23, 2014, the Township filed a notice of intervention. After oral
argument was conducted on May 26, 2015, the parties consented to the trial court
delaying issuance of a decision to allow the parties to engage in settlement discussions.
The trial court held settlement conferences on June 25, 2015, and October 1, 2015. In
the meantime, Intervenors attended meetings of the Township’s Board of Supervisors
(Board) on August 3, 2015, and August 17, 2015, where attendees were advised that
an appeal from the ZHB’s decision was pending and settlement negotiations with
Gravel Hill were ongoing. According to Intervenors, statements made at these
meetings alerted them to the possibility that the Township could change its position
during the negotiations and agree to conditions regarding the use of the Property that
they considered unacceptable. (R.R. at 366a-67a, 559a, 1190a-91a.)
2
The hearings occurred on September 17, 2014, October 1, 2014, and October 7, 2014. (R.R.
at 31a-32a.)
3
On September 8, 2015, Intervenors filed a petition to intervene with the
trial court. Gravel Hill filed an answer opposing Intervenors’ petition, asserting that
their petition was untimely because it was filed approximately nine months after the
appeal was filed, Intervenors’ interests were adequately represented by the Township,
and granting Intervenors’ petition would unduly delay resolution of the matter. The
trial court scheduled a hearing on Intervenors’ petition for October 30, 2015.
At the hearing, Gary Asteak, counsel for Gravel Hill, advised the trial
court that it had generated a draft settlement agreement (the settlement agreement) with
the Township pending official Township approval at a public meeting. Additionally,
the parties requested a brief conference with Intervenors’ counsel to discuss
Intervenors’ petition to intervene. After the conference, the parties advised the trial
court that they had reached an agreement (the stipulation) regarding Intervenors’
petition. Specifically, the parties articulated their stipulation on the record as follows:
MR. ASTEAK: Your honor, we’ve reached an agreement, I
believe. And this is what we submit to the Court. Gravel
Hill withdraws its objection to the petition for intervention.
Gravel Hill shall provide the intervenors forthwith with a
copy of the proposed -- the draft settlement agreement and
will provide or share a copy with the Court if the Court
wishes.
The parties agree that as a matter of law, the Court would be
empowered to approve or reject any settlement agreement
notwithstanding any positions taken by the intervenors. And
the intervenors will be given an opportunity to provide
comment on the settlement agreement.
THE COURT: Is that it?
MR. ASTEAK: That’s it.
4
THE COURT: What do you mean, the Court can approve or
reject the settlement notwithstanding objections from the
intervenors?
MR. ASTEAK: Means that the intervenors do not have veto
power over the settlement agreement.
THE COURT: Really?
MR. C. ELLIOTT: Yes.
MR. ASTEAK: They’re empowered to provide the Court
with whatever comment they wish with regard to the
agreement itself. That is our understanding.
* * *
THE COURT: Mr. Elliott and Mr. Elliott,[3] you heard
everything that Mr. Asteak has placed on the record. So just
for my own understanding, the objection to the petition to
intervene is withdrawn. So I’m going to grant the petition to
intervene. That is the number one first thing.
MR. ASTEAK: That’s correct.
MR. C. ELLIOTT: That’s our understanding, Your Honor,
if the township votes.
THE COURT: If the township votes on Monday to approve
the settlement, even if your clients oppose it, I can approve
or reject the settlement and bind your clients; is that correct?
MR. C. ELLIOTT: Yes, Your Honor. It’s our understanding
we will be able to both participate in the public hearing
process before the township but also to make our views
known to the Court. Under the stipulation, the Court has the
authority to either accept or reject the agreement. But I think
at the bottom, we would need to sway the Court that the
agreement should not be approved for whatever reasons we
would articulate. Ultimately, the Court would have the
3
Intervenors were represented before the trial court by two attorneys both with the surname
Elliott.
5
authority to enter the agreement after considering all the
views of all the parties.
(R.R. at 547a-49a.)
Accordingly, by order dated October 30, 2015, the trial court granted
Intervenors’ petition to intervene and directed the parties to file a brief regarding the
underlying appeal on or before November 6, 2015. (R.R. at 553a-54a.)
On November 2, 2015, the Township held a public meeting where it
discussed the appeal and proposed settlement agreement. At the meeting, copies of the
settlement agreement were made available to the public, and the Township Solicitor
provided a summary of the same and outlined the Township’s rationale for considering
settlement. Public comment on the settlement agreement occurred for approximately
two-and-one-half hours wherein members of the public, including certain Intervenors,
provided comments. Ultimately, the Township voted 3-2 to approve the settlement
agreement subject to the Township Solicitor’s satisfaction with the submitted exhibits,
execution by Gravel Hill, and the trial court’s approval. (R.R. at 561a.)
On November 6, 2015, Intervenors filed written comments to the
settlement agreement with the trial court and, based on their comments, some changes
were made to the settlement agreement that required approval by the Board. A vote on
the changes was scheduled for the next public meeting on November 16, 2015.4
On November 9, 2015, the trial court held oral argument and advised
Intervenors that it would allow them to provide comment and objections to the
settlement agreement. Intervenors argued that the settlement agreement did not
adequately address the clean-up of the Property; the amount of authorized truck traffic
was too high and the settlement agreement did not contain adequate mechanisms to
4
Gravel Hill Farms Organic Top Soil, Inc., an entity related to Gravel Hill, purchased parcels
near the Property on March 31, 2015. These parcels were predominantly the subject of Intervenors’
November 6, 2015 comments. (R.R. at 478a-79a, 487a-90a, 603a.)
6
monitor the same; the agreed-upon decibel limit was too high; the settlement agreement
lacked sufficient groundwater monitoring; the termination date for activities on the
Property was unreasonable; the settlement agreement failed to adequately address the
use of adjacent property in another township; and no bond was required to assure
Gravel Hill sufficiently remedied the Property. In response, Gravel Hill argued that
the issues Intervenors raised had been considered, negotiated, and addressed in the
settlement agreement. At the close of argument, the trial court indicated that
Intervenors still had an opportunity to submit comments to the Township and stated
that it would not make a decision regarding the settlement agreement until after the
Board’s November 16, 2015 meeting. (R.R. at 822a-23a, 827a-54a.)
On November 16, 2015, the Board held a public meeting where it
discussed the revised settlement agreement. At the meeting, the Board heard public
comment for approximately two hours, including additional comments from
Intervenors opposing the settlement agreement. Following public comment, the Board
voted 3-1 to approve the revised settlement agreement subject to Gravel Hill’s
execution of the same, execution of a limited consent and joinder by Gravel Hill Farms
Organic Top Soil, Inc., and the trial court’s approval. (R.R. at 562a-63a, 636a.)
On November 20, 2015, Gravel Hill and the Township filed a joint motion
for approval of the settlement agreement with the trial court. The same day, Intervenors
filed a response to the joint motion, essentially reiterating the objections raised in their
comments to the settlement agreement and requesting that the trial court reject the
same. Specifically, Intervenors argued that the settlement agreement: did not
adequately address clean-up of the Property; requested approval by court order but
authorized the parties to subsequently modify the same without judicial approval;
authorized and regulated operations outside of the Township’s boundaries and
7
jurisdiction; and created a potentially irreconcilable conflict between Gravel Hill’s
obligations under the settlement agreement and its obligations pursuant to DEP’s
orders. (R.R. at 682a-89a.)
By order dated November 20, 2015, the trial court approved the settlement
agreement and adopted it as an order. (R.R. at 751a-53a.) On December 17, 2015,
Intervenors filed an appeal to this Court.
On appeal,5 Intervenors argue that the trial court abused its discretion in
approving the settlement agreement because it: improperly rezoned property from
agricultural to industrial; lacked jurisdiction over the properties located outside of the
Township; improperly shifted the burden to Intervenors rather than the proponents of
the joint motion to approve the settlement agreement; failed to require clean-up of the
Property; and improperly permitted future amendment of the settlement agreement
without court approval.
Conversely, the Township argues that Intervenors waived their right to
appeal pursuant to the stipulation. The Township also asserts that the trial court’s
decision was proper because it complied with the procedures enumerated in the
stipulation, considered all the parties’ views, and Intervenors failed to persuade the trial
court that the settlement agreement should not be approved. According to the
Township, the trial court properly exercised authority over all aspects of the settlement
agreement, including those parcels located in an adjacent municipality, and acted
within its authority to approve the settlement agreement notwithstanding the parties’
ability to amend the same without judicial approval.
5
This Court reviews a trial court’s acceptance or rejection of a settlement proposal for abuse
of discretion. BPG Real Estate Investors-Straw Party II, L.P. v. Board of Supervisors of Newtown
Township, 990 A.2d 140, 145 (Pa. Cmwlth. 2010).
8
Discussion
I. Waiver
Initially, we address whether Intervenors waived their right to appeal by
entering into the stipulation.
This Court has held that “a valid stipulation becomes the law of the case.”
East Norriton Township v. Gill Quarries, Inc., 604 A.2d 763, 764 (Pa. Cmwlth. 1992)
(internal quotation marks omitted). We have also stated:
The Pennsylvania rule on stipulations is long-settled: parties
may bind themselves, even by a statement made in court, on
matters relating to individual rights and obligations, so long
as their stipulations do not affect the court’s jurisdiction or
due order of business. . . .
The Courts employ a contracts-law analysis to interpret
stipulations, so that the intent of the parties is controlling. . .
. The language of a stipulation, like that of a contract, is
construed against the drafter. . . . The court will hold a party
bound to his stipulation: concessions made in stipulations
are judicial admissions, and accordingly may not later in the
proceeding be contradicted by the party who made them. . . .
Id. (quoting Tyler v. King, 496 A.2d 16, 21 (Pa. Super. 1985)) (emphasis added)
(internal footnote omitted). Regarding the interpretation of a stipulation, we have noted
that:
A court cannot disregard a provision in a [stipulation] if a
reasonable meaning can be ascertained therefrom. In
construing a [stipulation,] each and every part of it must be
taken into consideration and given effect, if possible, and the
intention of the parties must be ascertained from the entire
instrument.
Id. (quoting McShain v. General State Authority, 307 A.2d 469, 472 (Pa. Cmwlth.
1973)). Moreover, “[t]he court will not extend the language by implication or enlarge
9
the meaning of terms beyond what is expressed.” Cobbs v. Allied Chemical
Corporation, 661 A.2d 1375, 1377 (Pa. Super. 1995) (emphasis added).
Intervenors argue that the stipulation “did not mention, refer to, discuss,
or expressly or impliedly implicate the right of appeal” and, therefore, Intervenors’
right to appeal was not waived. (Intervenors’ brief at 22.) Intervenors also note that
the Pennsylvania Constitution6 confers the right to appeal and assert that waiver of that
right cannot be presumed where the record is silent regarding the same. Moreover,
according to Intervenors, the courts will indulge every reasonable presumption against
waiver of a fundamental right.
Conversely, the Township argues that, by entering into the stipulation,
Intervenors relinquished their right to veto the settlement agreement, agreed to
authorize the trial court to accept or reject the settlement agreement, and agreed to be
bound by the trial court’s decision. According to the Township, to permit Intervenors
to appeal the trial court’s decision would wrongly deprive Gravel Hill of its ability to
oppose Intervenors’ petition to intervene, which was exceedingly untimely.
In Cobbs, several defendants executed a stipulation with the plaintiff,
agreeing that “if the liability phase of the case would have proceeded, it would have
been determined that the asbestos-containing products, manufactured by [the
defendants], were all a substantial factor and cause of decedent’s injuries, disease,
damages, and death.” 661 A.2d at 1377.
On appeal, the appellee-plaintiff argued, inter alia, that the stipulation
constituted a waiver of rights to post-trial relief. The Superior Court rejected that
6
Specifically, Article 5, Section 9 of the Pennsylvania Constitution states that “[t]here shall
be a right of appeal in all cases to a court of record from a court not of record; and there shall also be
a right of appeal from a court of record or from an administrative agency to a court of record or to an
appellate court . . . .” PA. CONST. art. 5, §9.
10
argument and concluded that the stipulation only affected the issue of causation,
reasoning that:
After reviewing the stipulation, we conclude, from its clear
and unambiguous language, that it was limited to the narrow
issue of legal causation. At no point were Owens or any other
defendants’ rights to post-trial relief discussed, mentioned or
otherwise implicated. Examining the stipulation on its face,
and narrowly construing its terms, we can only conclude that
Owens’ rights to post-trial relief were unaffected by the
stipulation and remained intact.
Id. at 1378 (emphasis added) (internal footnotes omitted).
Here, the parties agreed that “the [trial court] would be empowered to
approve or reject any settlement agreement notwithstanding any positions taken by
[Intervenors]” and that Intervenors did “not have veto power over the settlement
agreement.” (R.R. at 547a-48a.) Notably absent from the stipulation was any
discussion regarding the parties’ appeal rights. Essentially, Intervenors agreed that the
trial court was authorized to decide this matter and its decision was binding on the
parties. This is a matter of law. However, they did not agree to forfeit their rights to
appeal that decision. We find the Cobbs decision persuasive in that, in the absence of
any discussion of appeal rights on the face of the stipulation, we will not read a waiver
into the same. 661 A.2d at 1377 (“The court will not extend the language by
implication or enlarge the meaning of terms beyond what is expressed.”).
Therefore, examining the stipulation on its face and construing the terms
narrowly, we conclude that Intervenors did not waive their right to appeal by entering
into the stipulation, and we will continue to the merits of the present appeal.
11
II. Due Process
Throughout their brief to this Court, and before the trial court, Intervenors
have alleged a deprivation of due process during the proceedings below. However, a
review of the record below belies this allegation. In the stipulation, the parties
addressed, inter alia, the procedure that the trial court would utilize to review the
settlement agreement executed between Gravel Hill and the Township. As noted
above, the stipulation provided that: (1) Intervenors would be given an opportunity to
provide comment on the settlement agreement by participating in the process before
the Township and by making their views known before the trial court; (2) Intervenors
agreed to utilize the previously scheduled November 9, 2015 argument as a time to
communicate to the trial court by written submission and oral presentation, if they felt
the latter was necessary; (3) Intervenors would need to sway the trial court that any
settlement agreement should not be approved; and (4) the trial court would be
empowered to approve or reject any settlement agreement notwithstanding Intervenors’
position.
During an extended colloquy with the trial court, counsel for Intervenors
repeatedly acknowledged and confirmed the terms of the stipulation discussed above.
A review of the record reveals that the trial court adhered to the procedure set forth
above. Both before the Township and the trial court, Intervenors were provided with
ample opportunity for their objections to the proposed settlement agreement to be
heard. More specifically, Intervenors appeared at multiple Township meetings to
present their views in opposition to the settlement agreement. Intervenors also
submitted written comment to the trial court on November 6, 2015, and presented oral
argument before the trial court on November 9, 2015.
12
When asked by the trial court whether Intervenors wished to provide any
testimony, counsel responded, “You know, it’s honestly difficult for me to believe that
additional testimony, beyond the legal – beyond the comments and objections that
we’ve made is necessary.” (R.R. at 825a.) The trial court then proceeded to allow
counsel for Intervenors to present extensive argument regarding their objections to the
settlement agreement, so much so that the trial court advised counsel that he could
continue to present Intervenors’ objections from counsel’s table instead of standing.
See R.R. at 832a. After counsel for Gravel Hill and the Township had an opportunity
to respond to Intervenors’ objections, and before argument concluded, the trial court
ensured that Intervenors had sufficient time to present their concerns, asking counsel
for Intervenors if he felt he “had an unlimited opportunity to tell the Court whatever
you wanted with respect to your position on behalf of [Intervenors].” (R.R. at 851a).
Counsel responded that he had “[u]nlimited time, yes.” Id.
In the course of this argument, Intervenors contend that the trial court
improperly shifted the burden of proof from Gravel Hill and the Township, the
proponents of the settlement agreement, to them. However, in the stipulation,
Intervenors expressly agreed that it was their onus to sway the trial court that the
settlement agreement should not be approved. In addition, Intervenors fail to cite any
authority to support their assertion that Gravel Hill and the Township bore the burden
of proof and persuasion on the settlement agreement. Instead, Intervenors point to the
following passage from Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), for support:
The determination of whether such a shift [of the burden onto
a defendant] is suitable rests . . . primarily on considerations
of whether the shift vindicates the public policy at issue. In
addition, we consider difficulties of adducing evidence to
prove a negative, the parties’ relative access to evidence, and
whether placing the burden of proof on one party is necessary
to help enforce a further right, constitutional or otherwise.
13
Id. at 409 (citations omitted). However, Intervenors’ citation to Tincher is misplaced
because that case dealt with the shifting burden of proof in a strict liability case
involving defective products that included no agreement, like the stipulation at issue
here, as to the burden of proof. Tincher also involved consideration of the difficulties
for a defendant in such a case of adducing evidence to prove a negative and the parties’
relative access to evidence, neither of which are relevant considerations herein.
Intervenors also attempted to compare the joint motion of Gravel Hill and the
Township for approval of the settlement agreement to a motion for summary judgment,
wherein the burden rests with the moving party. However, the procedure in such a case
is factually distinguishable from the procedure relating to approval of a settlement
agreement in a land use appeal. Moreover, Intervenors appear to ignore that the trial
court had before it the complete record of the proceedings before the ZHB and the
Board, which included testimony from several of the Intervenors.
In sum, Intervenors had a full and fair opportunity to present their
comments and objections both before the Board and the trial court, and we see no
deprivation of their right to due process in the proceedings below.
III. Trial Court’s Jurisdiction
Intervenors further argue that the trial court erred when it exercised
jurisdiction over properties that were not the subject of the underlying litigation before
the ZHB. According to Intervenors, our decision in BPG Real Estate Investors-Straw
Party II, L.P. v. Board of Supervisors of Newtown Township, 990 A.2d 140 (Pa.
Cmwlth. 2010), mandates that a trial court’s approval of a settlement agreement
incorporating property that was not the subject of the underlying litigation constitutes
an abuse of discretion.
14
Conversely, the Township argues that the modifications to the settlement
agreement that implicated properties outside of the Township’s boundaries were made
at Intervenors’ request. The Township also avers that BPG is distinguishable from the
present matter because, here, the settlement agreement does not authorize the
development of properties outside of the Township’s boundaries; rather, the owner of
the adjacent property merely agreed not to conduct certain activities on his land, which
Pennsylvania law authorizes a landowner to do.
In BPG, we stated that:
The problem here, however, is that the trial court approved a
Settlement Agreement that includes a large amount of land
not at issue in BPG-2’s conditional use request and not at
issue in the initial land use appeal and mandamus action.
Through its complaint in mandamus and its notice of land use
appeal, BPG-2 sought approval of its proposed 130,000
square-foot office building on a 51-acre portion of the subject
properties. However, the Settlement Agreement
contemplates development of the entire 219-acre subject
properties. In approving the Settlement Agreement, which
allows for development of a far greater portion of the subject
properties than that at issue in the underlying litigation, we
believe the trial court was improperly invited beyond its
statutory scope of review.
Section 1001-A of the MPC[7] (Land use appeals) allows for
appeal to a common pleas court, and it provides: “The
procedures set forth in this article shall constitute the
exclusive method for securing review of any decision
rendered pursuant to Article IX or deemed to have been made
under this act.” 53 P.S. § 11001-A, added by the Act of
December 21, 1988, P.L. 1329. Therefore, the authority of
the trial court in land use appeals is linked by statute to
review of a decision rendered pursuant to Article IX of the
MPC.
7
MPC refers to the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L.
805, as amended, 53 P.S. §§10101-11202.
15
* * *
In sum, several provisions of the MPC circumscribe a trial
court’s authority in land use appeals to matters decided by
the municipal body and described in the notice of appeal.
BPG, 990 A.2d at 148.
Here, the Property was the only land at issue in the underlying litigation
before the ZHB. (R.R. at 31a.) Similarly, the Property was the only land identified in
Gravel Hill’s land use appeal to the trial court. Accordingly, we conclude that BPG
controls and mandates that the trial court’s approval of a settlement agreement, insofar
as it incorporated land that was not the subject of the underlying litigation, constituted
an abuse of discretion.8
Conclusion
The plain terms of the parties’ stipulation agreement indicate that
Intervenors did not waive their right to appeal. Additionally, the record establishes that
Intervenors were not deprived of due process in the proceedings before the Board or
the trial court. To the contrary, Intervenors agreed by stipulation to the procedure to
be utilized by the trial court and this procedure was strictly followed. Intervenors had
a full and fair opportunity to voice their concerns/objections to the settlement
agreement between Gravel Hill and the Township. However, consistent with BPG, the
trial court abused its discretion insofar as it approved the settlement agreement
incorporating land that was not the subject of the underlying litigation.
8
Contrary to the Township’s averment, our holding in BPG was not confined to the
development of property not at issue in the underlying litigation. Rather, the MPC circumscribes the
trial court’s authority “to matters decided by the municipal body and described in the notice of
appeal.” 990 A.2d at 148 (emphasis added).
16
Accordingly, the trial court’s order is affirmed in part and reversed in part,
consistent with this opinion.9,10
________________________________
PATRICIA A. McCULLOUGH, Judge
9
Before the trial court and in their brief to this Court, Intervenors alleged that the settlement
agreement effectively rezoned the property and was more akin to improper contract zoning. However,
during argument before this Court, counsel for Intervenors stated that the execution of the settlement
agreement effectively mooted this issue, that this was not a contract zoning case, and that the
settlement agreement did not go that far herein.
10
Intervenors also argued that the trial court abused its discretion in approving the settlement
agreement because it failed to require clean-up of the Property and permitted modification without
court approval. Regarding the former, the record reveals that clean-up of the site was the predicate
for the zoning relief and a review of the agreement itself reveals that Gravel Hill must remain in
compliance with a consent order previously issued by the Department of Environmental Protection
(DEP) relating to the property. Additionally, the settlement agreement includes provisions relating
to well monitoring, maintenance of records, proper permitting from DEP, and site visits by various
township officials. (Settlement Agreement, ¶5, R.R. at 614a-17a.) Regarding the latter, Intervenors
argue that Gravel Hill and the Township would be free to re-negotiate the terms of the agreement
without court review and without an opportunity for them to be heard. However, the terms of the
settlement agreement reflect that any modification must be put forth in writing and requires approval
by the Township at a public meeting, wherein Intervenors would have an opportunity to voice further
concerns. (Settlement Agreement, ¶14(J), R.R. at 629a.) Hence, the trial court did not abuse its
discretion in approving the settlement agreement in its current form.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gravel Hill Enterprises, Inc. :
: No. 2619 C.D. 2015
v. :
:
Lower Mount Bethel Township :
Zoning Hearing Board, Lower Mount :
Bethel Township, William S. Buehler, :
Catherine S. Buehler, Gus Tishuk, :
and Arlene Tishuk :
:
Appeal of: William S. Buehler, :
Catherine S. Buehler, Gus Tishuk, :
and Arlene Tishuk :
ORDER
AND NOW, this 30th day of October, 2017, the November 20, 2015
order of the Court of Common Pleas of Northampton County (trial court), insofar as
it approved a settlement agreement between Gravel Hill Enterprises, Inc., and Lower
Mount Bethel Township, that incorporated land that was not the subject of the
underlying litigation, is reversed. In all other respects, the trial court’s order is
affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gravel Hill Enterprises, Inc. :
:
v. : No. 2619 C.D. 2015
: Argued: September 13, 2017
Lower Mount Bethel Township :
Zoning Hearing Board, Lower Mount :
Bethel Township, William S. Buehler, :
Catherine S. Buehler, Gus Tishuk, :
and Arlene Tishuk :
:
Appeal of: William S. Buehler, :
Catherine S. Buehler, Gus Tishuk, :
and Arlene Tishuk :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
DISSENTING OPINION
BY JUDGE BROBSON FILED: October 30, 2017
Because I believe that the Court of Common Pleas of Northampton
County (trial court) did not err in approving the entirety of the parties’ settlement
agreement, which included concessions relating to nearby parcels of land outside of
Lower Mount Bethel Township in an effort to address concerns of objectors to the
variance application, I would affirm the trial court’s November 20, 2015 Order in
toto.
P. KEVIN BROBSON, Judge
Judge Cosgrove joins in this dissent.